International Law Commons^™

Surprises In The Skies: Resolving The Circuit Split On How Courts Should Determine Whether An "Accident" Is "Unexpected Or Unusual" Under The Montreal Convention, Ashley Tang

Washington Law Review

Article 17 of both the Montreal Convention and its predecessor, the Warsaw Convention, imposes liability onto air carriers for certain injuries and damages from “accidents” incurred by passengers during international air carriage. However, neither Convention defines the term “accident.” While the United States Supreme Court opined that, for the purposes of Article 17, an air carrier’s liability “arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger,” it did not explain what standards lower courts should employ to discern whether an event is “unexpected or unusual.” In 2004, …

A Synthesis Of The Science And Law Relating To Eyewitness Misidentifications And Recommendations For How Police And Courts Can Reduce Wrongful Convictions Based On Them, Henry F. Fradella

Seattle University Law Review

The empirical literature on perception and memory consistently demonstrates the pitfalls of eyewitness identifications. Exoneration data lend external validity to these studies. With the goal of informing law enforcement officers, prosecutors, criminal defense attorneys, judges, and judicial law clerks about what they can do to reduce wrongful convictions based on misidentifications, this Article presents a synthesis of the scientific knowledge relevant to how perception and memory affect the (un)reliability of eyewitness identifications. The Article situates that body of knowledge within the context of leading case law. The Article then summarizes the most current recommendations for how law enforcement personnel should—and …

Japan’S Transnational War Reparations Litigation: An Empirical Analysis, Timothy Webster

Faculty Scholarship

Negotiating war reparations is traditionally the province of the political branches, yet in recent decades, domestic courts have presided over hundreds of compensation lawsuits stemming from World War II. In the West, governments responded to these lawsuits with elaborate compensation mechanisms. In East Asia, by contrast, civil litigation continues apace. This Article analyzes eighty-three lawsuits filed in Japan, the epicenter of Asia’s World War II reparations movement. While many scholars criticize the passivity of Japanese courts on war-related issues, this Article detects a meaningful role for Japanese courts in the reparations process: awarding compensation, verifying facts, and allocating legal liability. …

Re-Sentencing Reform: A Comparative Analysis Of The Juvenile Justice System In The United States, United Kingdom, Colombia And Australia, Vianca I. Picart

ILSA Journal of International & Comparative Law

No abstract provided.

Taking Constitutional Identities Away From The Courts, Pietro Faraguna

Brooklyn Journal of International Law

In federal states, constitutional identity is the glue that holds together the Union. On the contrary, in the European Union—not a fully-fledged federation yet—each Member state has its own constitutional identity. On the one hand, the Union may benefit from the particular knowledge, innovation, history, diversity, and culture of its individual states. On the other hand, identity-related claims may have a disintegrating effect. Constitutional diversity needs to come to terms with risks of disintegration. The Treaty on the European Union seeks a balance, providing the obligation to respect the constitutional identities of its Member states. Drawing from the European experience, …

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

Democracy And Torture, Patrick A. Maurer

Patrick A Maurer

September 11th spawned an era of political changes to fundamental rights. The focus of this discussion is to highlight Guantanamo Bay torture incidents. This analysis will explore the usages of torture from a legal standpoint in the United States.

Impartiality And Independence: Misunderstood Cousins, James E. Moliterno

James E. Moliterno

No abstract provided.

The Problem With Frand: How The Licensing Commitments Of Standard-Setting Organizations Result In The Misvaluing Of Patents, David Arsego

Brooklyn Journal of International Law

Standard-setting organizations (SSOs) are bodies that oversee the development of technical standards. Technical standards are common technological designs that are used across a variety of platforms, for instance LTE, which is utilized throughout the mobile phone industry. Members of SSOs contribute different pieces of technology to an ultimate design, and if a patent covers the technology, it is called a standard-essential patent (SEP). SSOs require their members to license these patents to each other on fair, reasonable, and nondiscriminatory (FRAND) terms. This Note analyzes the FRAND requirement and the different ways that courts and private parties interpret it. The ambiguity …

Balancing The Scales: Adhuc Sub Judice Li Est Or Trial By Media, Casey J. Cooper

Casey J Cooper

The right to freedom of expression and free press is recognized under almost all major human rights instruments and domestic legal systems—common and civil—in the world. However, what do you do when a fundamental right conflicts with another equally fundamental right, like the right to a fair trial? In the United States, the freedom of speech, encompassing the freedom of the press, goes nearly unfettered: the case is not the same for other common law countries. In light of cultural and historic facts, institutional factors, modern realities, and case-law, this Article contends that current American jurisprudence does not take into …

The Eu’S Accession To The European Convention On Human Rights: An International Law Perspective, Jed Odermatt

Jed Odermatt

Article 6(2) of the Treaty on European Union establishes that the Union “shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.” In early 2013, negotiators of the 47 Council of Europe member states and the European Union finalised a draft Accession Agreement that would allow the EU to accede to Convention. Taking this draft Accession Agreement as a starting point, this paper examines the issues and challenges that EU accession poses from an international law perspective. Much of the literature on the EU accession has focused on the effect that this process will have …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

Investment Dispute Resolution Under The Transpacific Partnership Agreement: Prelude To A Slippery Slope?, Leon E. Trakman Professor

Leon E Trakman Dean

Intense debate is currently brewing over the multistate negotiation of the Transpacific Partnership Agreement [TPPA], led by the United States. The TPPA will be the largest trade and investment agreement after the European Union, with trillions of investment dollars at stake. However, there is little understanding of the complex issues involved in regulating inbound and outbound investment. The negotiating of the TPPA is shrouded in both mystery and dissension among negotiating countries. NGOs, investor and legal interest groups heatedly debate how the TPPA ought to regulate international investment. However this dissension is resolved, it will have enormous economic, political and …

International Money Laundering: The Need For Icc Investigative And Adjudicative Jurisdiction, Michael R. Anderson

Michael Anderson

Money laundering is one of the most pressing issues in the realm of international financial crimes. One of the biggest issues involved in international money laundering is the problem of adjudication. There is no international organization that currently hears these sorts of claims, forcing nations to adjudicate these crimes on their own, often without adequate resources to effectively investigate and enforce their money laundering statutes.

This article argues that, in order to more effectively prevent and adjudicate international money laundering offenses, the International Criminal Court should adopt an international money laundering statute designating these activities as a crime within the …

Ending Judgment Arbitrage: Jurisdictional Competition And The Enforcement Of Foreign Money Judgments In The United States, Gregory Shill

Gregory Shill

Recent multi-billion-dollar damage awards issued by foreign courts against large American companies have focused attention on the once-obscure, patchwork system of enforcing foreign-country judgments in the United States. That system’s structural problems are even more serious than its critics have charged. However, the leading proposals for reform overlook the positive potential embedded in its design.

In the United States, no treaty or federal law controls the domestication of foreign judgments; the process is instead governed by state law. Although they are often conflated in practice, the procedure consists of two formally and conceptually distinct stages: foreign judgments must first be …

Transplanting The European Court Of Justice: The Experience Of The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter, Osvaldo Saldias

Faculty Scholarship

Although there is an extensive literature on domestic legal transplants, far less is known about the transplantation of supranational judicial bodies. The Andean Tribunal of Justice (ATJ) is one of eleven copies of the European Court of Justice (ECJ), and the third most active international court. This article considers the origins and evolution of the ATJ as a transplanted judicial institution. It first reviews the literatures on legal transplants, neofunctionalist theory, and the spread of European ideas and institutions, explaining how the intersection of these literatures informs the study of supranational judicial transplants. The article next explains why the Andean …

Materials For Presentation: The Disappearing Colorado River, Lawrence J. Macdonnell

Navigating the Future of the Colorado River (Martz Summer Conference, June 8-10)

7 pages.

"Western Economics Forum, Fall 2010"

The Evolving International Judiciary, Karen J. Alter

Faculty Working Papers

This article explains the rapid proliferation in international courts first in the post WWII and then the post Cold War era. It examines the larger international judicial complex, showing how developments in one region and domain affect developments in similar and distant regimes. Situating individual developments into their larger context, and showing how change occurs incrementally and slowly over time, allows one to see developments in economic, human rights and war crimes systems as part of a longer term evolutionary process of the creation of international judicial authority. Evolution is not the same as teleology; we see that some international …

Current And Future Issues In International Space Law, Professor Henry Hertzfeld

ILSA Journal of International & Comparative Law

Space law is a relatively new area of law and is based mainly on a set of United Nations (U.N.) Treaties negotiated during the 1960s and 1970s.

Confronting The Limits Of The First Amendment: A Proactive Approach For Media Defendants Facing Liability Abroad, Michelle A. Wyant

San Diego International Law Journal

This Article confronts the limits this issue imposes on the First Amendment in four parts. Part I described the potential for conflicting defamation laws and forum shopping to undermine the American media's speech protections in the context of the Internet and global publications and outlines the Article's overall method of analysis. Part II first orients these conflicting defamation laws with respect to their development from the common law. It then frames them in terms of the underlying structural and policy differences that have produced their substantive divergence. This frame provides the analytical perspective through which this Article examines the varying …

The Assumptions Behind The Assumptions In The War On Terror: Risk Assessment As An Example Of Foundational Disagreement In Counterterrorism Policy, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

This 2007 article (based around an invited conference talk at Wayne State in early 2007) addresses risk assessment and cost benefit analysis as mechanisms in counterterrorism policy. It argues that although policy is often best pursued by agreeing to set aside deep foundational differences, in order to obtain a strategic plan for an activity such as counterterrorism, foundational differences must be addressed in order that policy not merely devolve into a policy minimalism that is always and damagingly tactical, never strategic, in order to avoid domestic democratic political conflict. The article takes risk assessment in counterterrorism, using cost benefit analysis, …

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

A Defense Of Structural Injunctive Remedies In South African Law, Danielle E. Hirsch

ExpressO

This Article argues that the use of structural injunction remedies by South African courts is appropriate, and, in light of demonstrated government inaction, often necessary in order to give meaning to the protection of socio-economic rights, which is mandated by their Constitution. The Article draws upon numerous United States judicial decisions where structural injunctions have been successfully implemented to address systemic institutional inaction and violations of the equal protection and due process clauses of the United States Constitution. In numerous instances, the South African government has not acted to effectively give meaning to the socio-economic rights which were broadly declared …

Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging Over Pro Se Canadian Corporate Defendants? Case Comment On U.S.A. V. Shield Development, Antonin I. Pribetic

ExpressO

Following the 2003 Supreme Court of Canada decision in Beals v. Saldanha, where the “real and substantial connection” test is otherwise met (i.e. consent-based jurisdiction, presence-based jurisdiction or assumed jurisdiction) the only available defences to a domestic defendant seeking to have a Canadian court refuse enforcement of a foreign judgment are fraud, public policy and natural justice. The 2005 Ontario decision in United States of America v. Shield Development Co., presents an opportunity to critically analyze the defence of natural justice through a juxtaposition of American and Canadian procedural law. The thesis is that procedural justice mandates that “form follow …

Data Privacy, Data Piracy: Can India Provide Adequate Protection For Electronically Transferred Data?, Vinita Bali

ExpressO

As the wave of outsourcing to India swells, there is growing concern about the inadequacies of the India legal system in protecting data being transferred to it from other nations for the purpose of processing. India has a smattering of laws that scantily address the issue of data privacy. Under pressure from the business processing industry in India, as well as from the European Union and other nations, it is but a matter of time before India adopts a slate of laws that address the issue of data protection. Once these laws are enacted, the main issue that remains is …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

The Clear And Present Danger Test In Anglo-American And European Law, David G. Barnum

San Diego International Law Journal

This Article will examine the role that the danger test has played in the decisions of American courts and, more recently, in the decisions of British courts and the enforcement organs of the European Convention. Part I will briefly trace the immediate Anglo-American constitutional background from which the danger test emerged. It particular, it will examine the way in which the common law offense of seditious libel was defined by British judges and judicial commentators in the late nineteenth century. Part II will focus on the evolution in American law of judicial attempts to articulate both a "content-based" and an …

Cambodia At A Crossroads: How Repealing Untac Article 63, Cambodia's Current Defamation Law, Will Lead To A More Vigorous Democracy, Alicia A. Adornato

ExpressO

Cambodia’s current criminal defamation law is an impermissible intrusion of Cambodians’ constitutionally guaranteed right to freedom of expression. The law itself is a remnant of the United Nations Transitional Authority in Cambodia. Moreover it is now being used as a tool to silence the government’s political opposition through a weak judiciary system, leaving in its wake a democracy afraid to exercise its constitutionally guaranteed rights. This law is an unconstitutional violation for several reasons: first, it violates the right to freedom of expression which is guaranteed in Cambodia’s Constitution. Secondly, it is incompatible with Cambodia’s human rights obligations under the …

International Law Weekend Panel On Litigating The Holocaust In U.S. Courts, Monica Dugot Esq.

ILSA Journal of International & Comparative Law

I joined Christie's a little over a year ago as Director of Restitution, coordinating Christie's restitution issues globally.