Transnational Law Commons^™

Dual Regulation Of Insurance, Christopher French

Christopher C. French

Parochial Procedure, Maggie Gardner

Maggie Gardner

The federal courts are often accused of being too parochial, favoring U.S. parties over foreigners and U.S. law over relevant foreign or international law. According to what this Article terms the “parochial critique,” the courts’ U.S.-centrism generates unnecessary friction with allies, regulatory conflict, and access-to-justice gaps. This parochialism is assumed to reflect the preferences of individual judges: persuade judges to like international law and transnational cases better, the standard story goes, and the courts will reach more cosmopolitan results. This Article challenges that assumption. I argue instead that parochial doctrines can develop even in the absence of parochial judges. Our …

Transnational Class Actions In The Shadow Of Preclusion, Zachary D. Clopton

Zachary Clopton

Managing Regulatory Arbitrage: An Alternative To Harmonization, Annelise Riles

Annelise Riles

This policy-oriented article argues for deploying conflict of laws doctrines as a tool of coordination in international financial governance.

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

David Ingram

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

Proximate Cause In Maritime Insurance, Angelo Giampietro Avv.

Angelo Giampietro Avv.

The proximate cause in marine insurance is the “dominant cause” of the loss. It was decided per Bingham L J in T M Noten BV v Harding that the dominant cause of the loss is to be determined by “applying the common sense of a business or seafaring man.” In determining the proximate cause of the loss, The Court recognized that it had to find the cause that was proximate in efficiency, and to do so they had to apply the test of the sentence expressed by Bingham LJ. Nevertheless, at the light of the recent decision of the Supreme …

America Giveth, And America Taketh Away: The Fate Of Article 9 After The Futenma Base Dispute, Allen P. Mendenhall

Allen Mendenhall

This Article considers how the Obama administration’s policies toward Japan implicate Article 9 of the Japanese Constitution. More specifically, it argues that the Futenma base dispute (as it has come to be known) jeopardizes the very existence of Article 9 by threatening to render it moot and by expanding the already expansive interpretations of Article 9. Part I provides a brief history of the Futenma base dispute during the Obama years, and Part II explains the effects of the Futenma base dispute on Article 9. More specifically, Part II contextualizes the Futenma issue by way of the legislative and judicial …