Litigation Commons^™

Ashes To Ashes: Comparative Law Regarding Survivors’ Disputes Concerning Cremation And Cremated Remains, Eloisa Rodriguez-Dod

Eloisa C Rodríguez-Dod

One should plan for unassuming post-mortem issues, as most state laws do not provide a complete framework when there is no testamentary instruction by the deceased. Judicial determination is often needed, however reported opinions are scarce. Final disposition issues also arise in foreign law. Spain has no civil code regarding disposition of a deceased but delegates its funerary laws to local governments and autonomous communities, while the French have established an order of priority for funerary decisions and provide for a judicial determination and stay of the funerary process in case of dispute. The author gives a brief history of …

Customary International Law: A Reconceptualization, Roozbeh (Rudy) B. Baker

Brooklyn Journal of International Law

The current state of international law is one of deep confusion over the role of state practice and opinio juris within the customary element. The debate between adherents of “modern custom” versus those of “traditional custom” has resulted in deep uncertainty and confusion. New theories of customary international law have proved inadequate in clarifying the current state of the field. Confusions over the meanings and relationships between state practice and opinio juris aside, current approaches are all also flawed due to a heavily state-centric bias that fails to take into account the very real affects that norm-generating transnational actors have …

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) …

Dismissing Provenance: The Use Of Procedural Defenses To Bar Claims In Nazi-Looted Art And Securitized Mortgage Litigation, Christian J. Bromley

Christian J Bromley

The litigation surrounding an estimated 650,000 works looted by the Nazis in the Second World War and the millions of securitized mortgages foreclosed in the wake of the Great Recession converge on a fundamental legal principle: who really holds rightful title? Seemingly worlds apart, these separate yet remarkably similar forms of property challenge the American judiciary to allocate property rights between adversaries steadfast in their contention of rightful ownership. The legal fulcrum in this allocation often rests not on the equity or righteousness of either parties’ claim—whether museum versus heir or bank versus former homeowner—but instead on procedural defenses that …

The Brazilian Appellate Procedure Through Common Law Lenses: How American Standards Of Review May Help Improve Brazilian Civil Procedure, Cesar Zucatti Pritsch

Cesar Zucatti Pritsch

In this article, we address a flaw in Brazilian civil procedure observed in our practice as a Federal Labor Judge in Brazil, an issue that may be addressed by limiting appellate review in a similar fashion as the American courts do, using standards of appellate review.

In Brazil, appellate courts tend to ignore the lower court’s decisions, replacing them for the ruling they would have made had they been the original decision makers. A simple disagreement with the lower court’s findings of fact or discretionary rulings, no matter how reasonable, is sufficient grounds for reversal.

The lack of standards of …

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 …

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 …

Improving Parity In Personal Jurisdiction And Judgment Enforcement In International Cases: A Domestic Proposal To Help Revive The Hague Judgments Convention, Eric Porterfield

Eric Porterfield

Two aspects of American law inadvertently discriminate against American consumers and businesses to the benefit of foreign nationals. Restrictive personal jurisdiction rules often prevent American courts from exercising jurisdiction over foreign nationals on the grounds that they lack sufficient “contact” with the forum. Foreign product manufacturers can use this to their advantage, structuring their business dealings to take advantage of confusing constitutional constraints on personal jurisdiction, reducing, if not eliminating, the risk of potential tort liability in American courts, often leaving American consumers without a remedy and disadvantaging American businesses. American companies, in contrast, cannot avoid American tort law at …

Book Review: The Three And A Half Minute Transaction: What Sticky Boilerplate Reveals About Contract Law And Practice, Andrea J. Boyack

Andrea J Boyack

This review situates Gulati & Scott’s findings with respect to sovereign debt instruments and the contracting process in the context of a legal profession on the brink of change. Gulati and Scott’s book addresses the inexplicable failure of lawyers to respond to a sovereign debt litigation outcome by clarifying a boilerplate provision after an adverse judicial interpretation. Their fascinating study of boilerplate in sophisticated transactional legal practice is timely and compelling both in terms of the specific story it tells, namely the persistence of the pari passu clause in sovereign debt instruments, as well as its broader implications: Structural flaws …

„Zuerst Schlichten, Dann Richten“: O Modelo Suíço De Solução De Litígios Pré-Processual É Adequado Para O Brasil?, Nelson Rodrigues Netto

Nelson Rodrigues Netto

Dieser Aufsatz analysiert die Schlichtung und die Mediation in der Schweizerische Zivilprozessordnung.

Abduction, Torture, Interrogation - Oh My! An Argument Against Extraordinary Rendition, Kaitlyn E. Tucker

Kaitlyn E Tucker

An American citizen waits patiently in an airport terminal in Jordan for a flight back to the United States. Several men – Jordanian officials – are watching the American and waiting for the right moment to approach him. The American gets up and starts to walk away, perhaps to get a cup of coffee. The Jordanian officials stop the American quickly and take him to a secluded part of the airport. For the next several days, the Jordanians question the American relentlessly, trying to discover his connection to the torture of hundreds of Muslim and Middle Eastern individuals. They do …

Too Much Process, Not Enough Service: International Service Of Process Under The Hague Service Convention, Eric Porterfield

Eric Porterfield

Service of process under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”) is too costly, time consuming, and unreliable. The Hague Service Convention’s defining feature – the Central Authority system – adds unwarranted expense and delay to the already expensive and protracted process of civil litigation. Worse, however, is the fact that the Central Authority completely fails to effect service on a foreign party in a significant percentage of cases. For decades, courts and commentators have argued over whether the Hague Service Convention actually permits litigants to sidestep 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 …

International Civil Litigation In U.S. Courts: Becoming A Paper Tiger?, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Legitimacy, Accountability, And Partnership: A Model For Advocacy On Third World Environmental Issues, David A. Wirth

David A. Wirth

To date, there has been little effort to define the characteristics of responsible environmental reform efforts by private citizens and organizations in the United States on foreign environmental problems, such as the quality of foreign aid. Moreover, there have been virtually no attempts to identify a principled role for American lawyers in Third World environmental issues. This Essay will respond to these lacunae by articulating a new approach to advocacy based on a partnership model. In Part I, this Essay identifies the need for American public interest advocates to establish partnerships with directly affected groups on Third World environmental issues. …

International Media Law Reform And First Amendment Agnosticism: Review Of Lee Bollinger’S Uninhibited, Robust, And Wide-Open: A Free Press For A New Century, Enrique Armijo

Federal Communications Law Journal

Lee Bollinger's Uninhibited, Robust, and Wide-Open argues that in an increasingly globalized world, the United States must seek to export First Amendment free press principles to other countries. His project, however, is belied by the fact that media law is a product of context and history as much as legalism. His proposals for reconceptualizing our own animating vision for a free press here in the States are also in many important respects inconsistent with the First Amendment itself.

Taking War Seriously: A Model For Constitutional Constraints On The Use Of Force, In Compliance With International Law, Craig Martin

Craig Martin

This article develops an argument for increased constitutional control over the decision to use armed force or engage in armed conflict, as a means of reducing the incidence of illegitimate armed conflict. In particular, the Model would involve three elements: a process-based constitutional incorporation of the principles of international law relating to the use of force (the jus ad bellum regime); a constitutional requirement that the legislature approve any use of force rising above a de minimus level; and an explicit provision for limited judicial review of the decision-making process. The Model is not designed with any one country in …

Recent Private International Law Developments Before The Supreme Court Of Canada, Antonin I. Pribetic

Antonin I. Pribetic

A trilogy of interesting cases involving private international law recently wended their way to the Supreme Court of Canada: (1) King v. Drabinsky (an Ontario case addressing the applicability of the Charter in respect of the enforcement of a foreign judgment); (2) Teck Cominco Metals Ltd. v. Lloyd's Underwriters (a British Columbia case involving declaratory relief in the context of parallel proceedings and forum non conveniens); and (3) Yugraneft v. Rexx Management Corporation (an Alberta case which affirmed that the two-year limitation period under s.3 of Alberta's Limitations Act, governs when a party seeks the recognition and enforcement in Alberta …

Invisible Ink In The Eighth Arrondissement, Karl T. Muth

Karl T Muth

IMPORTANT: This document may prompt you for a username and password. If this occurs, please simply click "cancel" and the document will load. Thank you. This Article deals with the history of the secret contract that governs the distribution of economic rents enjoyed by Formula One. It further explores the environment in which this secret contract evolved and briefly discusses applications for secret contracts in other scenarios and industries.

Ashes To Ashes: Comparative Law Regarding Survivors’ Disputes Concerning Cremation And Cremated Remains, Eloisa Rodriguez-Dod

Faculty Publications

One should plan for unassuming post-mortem issues, as most state laws do not provide a complete framework when there is no testamentary instruction by the deceased. Judicial determination is often needed, however reported opinions are scarce. Final disposition issues also arise in foreign law. Spain has no civil code regarding disposition of a deceased but delegates its funerary laws to local governments and autonomous communities, while the French have established an order of priority for funerary decisions and provide for a judicial determination and stay of the funerary process in case of dispute.

The author gives a brief history of …

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. …

Taking Judicial Notice Of Genocide? The Problematic Law And Policy Of The Karemera Decision, Ralph Mamiya

ExpressO

On June 16, 2006, the Appeals Chamber of the International Criminal Tribunal for Rwanda issued a decision in Prosecutor v. Karemera taking judicial notice of the fact that genocide occurred in Rwanda in 1994. This decision startled many court observers. While no internationally respected commentator would today question whether the Rwanda genocide took place, should such an event be judicially noticed without evidence? This paper examines that question, arguing that the ICTR Appeals Chamber’s expansive use of judicial notice in Karemera was both illogical and unwise. Genocide, whether as an historical fact or legal charge, fails to meet the “common …

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.

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 …

Jumping On The Bandwagon: How Canadian Lawyers Can & Should Get Involved In The Emerging Trend To Implement Therapeutic Jurisprudence Practices In Canadian Courts, Brooke Bloom

ExpressO

No abstract provided.

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 Dutch Auction Myth, Peter B. Oh

ExpressO

The initial public offering process is under assault. Critics of this process have woven a complex set of interconnected objections to the orthodox method for conducting IPOs, pricing of shares, and allocating them to preferred investors. These critics instead point to online auctions as an alternative IPO method that can provide more equitable access, efficient prices, and egalitarian allocations. These claims rest on Google’s recent IPO and W.R. Hambrecht + Co.’s OpenIPO mechanism, conventionally regarded as impure variants of what is known as a descending-bid or Dutch auction (Dutch IPO).

This article assesses the empirical and theoretical case for Dutch …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

The Rise Of Managerial Judging In International Criminal Law, Maximo Langer

ExpressO

Abstract This article puts the procedure of the International Criminal Tribunal for the former Yugoslavia (ICTY) in a completely new and previously unexplored light. Rejecting the predominant view of ICTY procedure as a hybrid between the adversarial system of the U.S. and the inquisitorial system of civil law jurisdictions, this article shows that ICTY procedure is best described through a third procedural model that does not fit in either of the two traditional systems. This third procedural model is close to the managerial judging system that has been adopted in U.S. civil procedure. The article then explores some of the …

Good Faith In The Cisg: Interpretation Problems In Article 7, Benedict C. Sheehy

ExpressO

ABSTRACT: This article examines the dispute concerning the meaning of Good Faith in the CISG. Although there are good reasons for arguing a more limited interpretation or more limited application of Good Faith, there are also good reasons for a broader approach. Regardless of the correct interpretation, however, practitioners and academics need to have a sense of where the actual jurisprudence is going. This article reviews every published case on Article 7 since its inception and concludes that while there is little to suggest a strong pattern is developing, a guided pattern while incorrect doctrinally is preferable to the current …