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2001

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The Case Against The International Criminal Court , Lee A. Casey Jan 2001

The Case Against The International Criminal Court , Lee A. Casey

Fordham International Law Journal

This article argues against participation by the United States in the International Criminal Court. The article attempts to show that participation in the ICC regime would be inconsistent with American democracy, inimical to American national interests and would violate the Constitution. Were the United States to become a State party to the Rome Statute, it would, for the first time since July 4, 1776, acknowledge the superior authority of an institution neither elected by the American people, nor accountable to them for its actions. Not surprisingly, ratification of the Rome Statute also would violate the Constitution

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Market Power In Electricity Markets: Regulation, Deregulation And Competition - Lessons From The Italian Experience And Other European And U.S. Case Studies, Giuseppe Tesauro Jan 2001

Market Power In Electricity Markets: Regulation, Deregulation And Competition - Lessons From The Italian Experience And Other European And U.S. Case Studies, Giuseppe Tesauro

Fordham International Law Journal

The purpose of this Essay is threefold. First, to describe the Italian reform in electricity markets, comparing the models of liberalization and privatization followed by the Italian legislator with the British and French experiences. Second, to analyze the structure of the Italian electricity industry, which arose from the reform, and to study its effects in terms of increased competition from the vertical separation of the former monopolist. For this reason the traditional definition of market power will be revised. New indicators of the existence of a dominant position will be described. Studying the peculiarities of this industry, it will be …

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Legislating The Golden Rule: Achieving Comparable Protection Under The European Union Database Directive , Julie Wald Jan 2001

Legislating The Golden Rule: Achieving Comparable Protection Under The European Union Database Directive , Julie Wald

Fordham International Law Journal

This Note examines the types of protection given to databases in both the United States and Europe. Part I discusses the reasons for providing databases protection. Part I also provides background information on the EU Database Directive, and examines the history of copyright protection of databases in the United States in light of a landmark Supreme Court decision and then analyzes the approach to database protection arising under the Collections of Information Antipiracy Act, a proposed law in the U.S. Congress. Part II balances sui generis protection in the EU Database Directive with misappropriation in H.R. 354. Part II also …

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China's Safeguard Measures Under The New Wto Framework, Lihu Chen, Yun Gu Jan 2001

China's Safeguard Measures Under The New Wto Framework, Lihu Chen, Yun Gu

Fordham International Law Journal

This Essay inquires into the nature of China's new safeguard regulation, its significance in China's new trade regime, and, in the authors' view, some of its shortcomings. Part I gives a brief overview of the purpose of safeguard measures and the place of safeguard regulations in China's new trade regime. Part II describes some of the challenges that China's producers will face in the wake of the newly liberalized domestic market, and observes that the use of safeguard measures will become both necessary and important in the coming years in order to facilitate adjustment to this new environment. Part III, …

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Dealing With The Risks And Responsibilities Of Landmines And Their Clearance, Michael Polkinghorne, James Cockayne Jan 2001

Dealing With The Risks And Responsibilities Of Landmines And Their Clearance, Michael Polkinghorne, James Cockayne

Fordham International Law Journal

Part I of this Essay addresses the issues of State responsibility for landmine removal. Part II discusses the various legal issues that landmine removal programs present. It does so by examining: (1) the international obligations that exist; (2) the domestic legal considerations; and (3) some of the issues facing governments who wish to remove landmines by the common measure of contracting out such work to third parties. The central question Part II considers is whether and how States can transfer the risks associated with landmine clearance to contractors.

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Policing Undercover Agents In The United Kingdom: Whether The Regulation Of Investigatory Powers Act Complies With Regional Human Rights Obligations, Cara Hirsch Jan 2001

Policing Undercover Agents In The United Kingdom: Whether The Regulation Of Investigatory Powers Act Complies With Regional Human Rights Obligations, Cara Hirsch

Fordham International Law Journal

This Comment explores the background of the conflict in Northern Ireland and an example of alleged past corruption in the UK security forces' use of covert agents. It discusses the legal background surrounding the enactment of RIPA, including the direct legislative history of the Act and the Act's indirect history, as evidenced through decisions of the European Court of Human Rights. It also examines the statutory framework of RIPA focusing on the provisions that serve as a check on the use of covert human surveillance in the United Kingdom and Northern Ireland. Finally, this Comment argues that RIPA is insufficient …

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Alientating "Human" From "Right": U.S. And Uk Non-Compliance With Asylum Obligations Under International Human Rights Law, Inna Nazarova Jan 2001

Alientating "Human" From "Right": U.S. And Uk Non-Compliance With Asylum Obligations Under International Human Rights Law, Inna Nazarova

Fordham International Law Journal

Snapshot of the state of asylum seekers' rights in the United States and the UK at the time it was written. It provides an overview of U.S. and UK obligations to asylum seekers under international human rights law. The Comment also discusses the basics of U.S. and UK domestic law and procedure relevant to claims for asylum. The author advocates that the United State and the UK adopt a comprehensive approach to preserve asylum seekers' rights and concludes that domestic law should not become a pretext for human rights violations of asylum seekers in the post-September 11th world.

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The Early History Of German-Jewish Reparations, Menachem Z. Rosensaft, Joana D. Rosensaft Jan 2001

The Early History Of German-Jewish Reparations, Menachem Z. Rosensaft, Joana D. Rosensaft

Fordham International Law Journal

This Article provides an overview of the process leading up to the first comprehensive German-Jewish reparations agreements in order to give a historical context to the contemporary discussion of Holocaust-related reparations and restitution. The Article further attempts to shed some light on the behind-the-scenes role played by Josef Rosensaft, one of the individuals involved in the early stages of the reparations negotiations, and his parallel efforts to remedy the 1950-1951 denial of compensation payments to some 18,000 Jewish DP's by the German Land (State) of Lower Saxony.

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Disability, Federalism, And A Court With An Eccentric Mission, Michael H. Gottesman Jan 2001

Disability, Federalism, And A Court With An Eccentric Mission, Michael H. Gottesman

Georgetown Law Faculty Publications and Other Works

This article examines the Supreme Court's recent Eleventh and Fourteenth Amendment decisions constraining Congress's power to impose legal obligations on state governments. The context for this examination is the Court's consideration this Term of the constitutionality of the provision of the Americans with Disabilities Act authorizing individual suits against states by persons alleging they have been victimized by state disability discrimination. This article was written while the fate of the ADA case was unknown. But the Court issued its decision just as this article was going to press. A postscript has been added describing that decision and its implications. The …

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Handling Cases Of Willful Exposure Through Hiv Partner Counseling And Referral Services, Lawrence O. Gostin, James G. Hodge Jr. Jan 2001

Handling Cases Of Willful Exposure Through Hiv Partner Counseling And Referral Services, Lawrence O. Gostin, James G. Hodge Jr.

Georgetown Law Faculty Publications and Other Works

Cases of willful exposure reveal the existing and future risks to the public health (especially women) which may be presented by individuals who willfully expose others to HIV through unsafe sexual or needle-sharing behaviors. In response to a documented case of willful exposure, a PCRS counselor or other public health official may, in his or her professional judgment, decide to act to avert a legitimate public health threat to known or unknown persons in the community. Yet handling such cases raises difficult issues in law, ethics, and public health practice. Public health authorities may be unable or ill-equipped to successfully …

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Cook V. Gralike: Easy Cases And Structural Reasoning, Vicki C. Jackson Jan 2001

Cook V. Gralike: Easy Cases And Structural Reasoning, Vicki C. Jackson

Georgetown Law Faculty Publications and Other Works

In Cook v Gralike, the Court - unanimous as to result - struck down a Missouri initiative amending the state constitution to require that the failure of candidates for U.S. Congress to support a particular term-limits amendment to the United States Constitution be noted on the ballot. In an opinion joined by seven Justices, the Court held that the Missouri law exceeded the scope of states' powers to regulate the "time, place and manner" of holding congressional elections . . . The opinions are analyzed preliminarily in Part I. Part II below suggests that even if there were no Elections …

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Accommodating The Public Sphere: Beyond The Market Model, Nan D. Hunter Jan 2001

Accommodating The Public Sphere: Beyond The Market Model, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

This Essay has two major components. First, in Parts I and II, I describe and critique the Court's opinion in Dale, beginning with an examination of the social origins of scouting, then proceeding to an analysis of Dale. Second, in Parts III and IV, I place the questions raised in Dale in another context in which they belong but are seldom analyzed, that of the jurisprudence of public accommodations laws . . . In conclusion, I join the two major themes by framing Dale's claim as the latest in a series of cases that have invoked an evolving understanding of …

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Law, Marriage, And Intimate Commitment, Milton C. Regan Jan 2001

Law, Marriage, And Intimate Commitment, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

Does society have any interest in the stability of marriage per se - that is, apart from any concerns about the impact of divorce on children or financially dependent spouses? Should law try in any way to reinforce an ethic of commitment in marriage as a good in and of itself? . . . Two social trends make this a timely issue. First is the steady erosion of the link between marriage and procreation over the last generation. More married couples do not have children; more children are born outside of marriage. A second trend is the rise of unmarried …

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Challenges Of The New Economy: Issues At The Intersection Of Antitrust And Intellectual Property, Robert Pitofsky Jan 2001

Challenges Of The New Economy: Issues At The Intersection Of Antitrust And Intellectual Property, Robert Pitofsky

Georgetown Law Faculty Publications and Other Works

There is wide agreement that the last decade or so has presented an unusually lively and challenging period for antitrust analysis. Among many reasons we can point to are deregulation and problems of transition to a free market (telecommunications and electricity production offer leading examples), developments in procedural cooperation and possible substantive convergence in response to the increasing globalization of competition and enforcement approaches, and priorities in addressing an unprecedented merger wave. An additional challenge involves the application of established antitrust principles to the growing high-tech sector of the economy. It is that application of antitrust law to the new …

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Corpus-Based Spanish Activities For The First Year Classroom, Linda C. Bailey Jan 2001

Corpus-Based Spanish Activities For The First Year Classroom, Linda C. Bailey

Graduate Student Theses, Dissertations, & Professional Papers

No abstract provided.

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Weekly Look At The Labors Of Montana's Citizen-Lawmakers: Community News Service And The 57th Montana Legislature, Jason C. Mohr Jan 2001

Weekly Look At The Labors Of Montana's Citizen-Lawmakers: Community News Service And The 57th Montana Legislature, Jason C. Mohr

Graduate Student Theses, Dissertations, & Professional Papers

No abstract provided.

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Foreword: Is Reliance Still Dead?, Randy E. Barnett Jan 2001

Foreword: Is Reliance Still Dead?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

One thing I found out when I was a prosecutor is that you should never tell a police officer he cannot do something, for that just serves as an open invitation for him to do it. In recent years, I have learned a similar lesson about legal scholarship which I should probably keep to myself but won't. If you proclaim the existence of a scholarly "consensus," this is an open invitation for academics to try to demolish such a claim.

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Fair Use Infrastructure For Rights Management Systems, Dan L. Burk, Julie E. Cohen Jan 2001

Fair Use Infrastructure For Rights Management Systems, Dan L. Burk, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

In this paper, we consider whether rights management systems can be supported by legal and institutional infrastructures that enable appropriate public access to the works secured by these technologies. We focus primarily on the design challenges posed by the fair use doctrine, which historically has played a central role in preserving such access. Throughout the paper, however, we also use the term "fair use" to refer more generally to the variety of limiting doctrines within copyright law that serve this goal. We begin in Part II by reviewing the contours of the fair use doctrine and the legal and policy …

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Civil Rights In The New Decade: The Geography Of Opportunity, Sheryll Cashin Jan 2001

Civil Rights In The New Decade: The Geography Of Opportunity, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

It is truly an honor and a privilege to have been invited to return to my home state of Alabama to talk about the civil rights agenda in the new decade. Lest you think that I lack the appropriate credentials to speak on this issue, I will tell you that I did go to jail for the cause. At the age of four months, I was taken by my mother, Joan Carpenter Cashin, to a sit-in at a lunch counter in Huntsville, Alabama. When my mother was arrested, she insisted on taking me with her to jail. I am very …

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Privatized Communities And The "Secession Of The Successful": Democracy And Fairness Beyond The Gate, Sheryll Cashin Jan 2001

Privatized Communities And The "Secession Of The Successful": Democracy And Fairness Beyond The Gate, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

In this essay, I will reflect on how common interest developments, and their privatized spaces, are contributing to a broader phenomenon of civic secession, primarily by affluent property owners. In particular, I will analyze the way in which CIDs may affect electoral politics and the allocation of public resources by federal and state government. The chief threat of CIDs is that they exacerbate inequality in America while also exacerbating the challenges of governing. By giving the private property owner a formal context in which to feel justified in her view that she is "doing her part" simply by paying her …

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Calibrated Commitment: The Legal Treatment Of Marriage And Cohabitation, Milton C. Regan Jan 2001

Calibrated Commitment: The Legal Treatment Of Marriage And Cohabitation, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

A couple of points are worth making at the outset of my argument. First, I speak in this Essay primarily about the extension of benefits to domestic partners, rather than the imposition of duties upon them. That is because this has been the focus of most of the debate about the legal treatment of married and unmarried couples. I readily acknowledge, however, that a fuller debate would consider not only when domestic partners should be given rights, but also when they should assume certain responsibilities. Indeed, as I will make clear, one reason for rejecting certain claims by unmarried couples …

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Reconstructing The Rule Of Law, Robin West Jan 2001

Reconstructing The Rule Of Law, Robin West

Georgetown Law Faculty Publications and Other Works

The action taken in Bush v. Gore by the five conservative Justices on the United States Supreme Court, Bugliosi argued, was not just wrong as a matter of law, but criminal: It was a malem in se, fully intended, premeditated theft of a national election for the Presidency of the United States. Now, as Balkan and Levinson would argue, this seventh, "prosecutorial" response -- that the Court's action was not just wrong but criminal -- is also not available to a devotee of either radical or moderate indeterminacy. Even assuming both criminal intent and severe harm-a wrongful, specific intent to …

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Race And Discretion In American Medicine, Maxwell Gregg Bloche Jan 2001

Race And Discretion In American Medicine, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

The author’s focus in this article is on racial disparities in medical care provision--that is, on differences in the services that clinically similar patients receive when they present to the health care system. Racial disparities in health status, which is not greatly influenced (on a population-wide basis) by medical care, are beyond his scope here. Disparities in medical care access-potential patients' ability, financial and otherwise, to gain entry to the health care system in the first place, are also outside his focus. The author begins this article by putting the problem of racial disparities in medical care provision within the …

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Viewing Grizzly Bears In Captivity | An Exploration Of Visitor Dialogue And Meanings Associated With The Experience, Stefanie A. Kearns Jan 2001

Viewing Grizzly Bears In Captivity | An Exploration Of Visitor Dialogue And Meanings Associated With The Experience, Stefanie A. Kearns

Graduate Student Theses, Dissertations, & Professional Papers

No abstract provided.

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The Marbury Mystery: Why Did William Marbury Sue In The Supreme Court?, Susan Low Bloch Jan 2001

The Marbury Mystery: Why Did William Marbury Sue In The Supreme Court?, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

In 1801, when William Marbury petitioned the Supreme Court to issue a writ of mandamus ordering Secretary of State James Madison to deliver his commission as justice of the peace, he initiated one of the most important cases in the Court's history. But why did Marbury choose the Supreme Court? Was there a lower federal court that could have granted the writ at the time? The short answer is "yes." Rather than making an unsuccessful attempt to invoke the original jurisdiction of the United States Supreme Court, I have learned that he could have brought his suit in the then …

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The Right To Liberty In A Good Society, Randy E. Barnett, Douglas B. Rasmussen Jan 2001

The Right To Liberty In A Good Society, Randy E. Barnett, Douglas B. Rasmussen

Georgetown Law Faculty Publications and Other Works

We have been asked to consider how a "Constitution of Civic Virtue" might contribute to a "good society." To answer this question, we need to have some idea of what a good society might be, and we need to be able to articulate that idea. Certainly, we think we know a good movie when we see it, a good book when we read it, a good argument when we hear it, and a good idea when we have one, but we are not sure we have a handle on what a good society is. Even what we think we know …

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Secrecy, Guilt By Association, And The Terrorist Profile, David Cole Jan 2001

Secrecy, Guilt By Association, And The Terrorist Profile, David Cole

Georgetown Law Faculty Publications and Other Works

In this essay, I will argue that the use of secret procedures and guilt by association in immigration trials is not only unconstitutional but counterproductive. I will begin with a case study, then discuss in turn the practices of secret evidence and guilt by association, and finally conclude with a consideration of how these two tactics perpetuate invidious stereotypes about Arabs and Muslims.

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As Freedom Advances: The Paradox Of Severity In American Criminal Justice, David Cole Jan 2001

As Freedom Advances: The Paradox Of Severity In American Criminal Justice, David Cole

Georgetown Law Faculty Publications and Other Works

According to the Enlightenment philosopher Montesquieu, "as freedom advances, the severity of the penal law decreases."' Montesquieu's notion is in the United States Constitution's Eighth Amendment, a provision that reflects a Montesquieuan faith that punishments acceptable today will become cruel and unusual tomorrow. Yet the United States in the year 2000 presents a serious challenge to Montesquieu's notion of the progress of freedom. The United States is simultaneously a leader of the "free world" and of the incarcerated world. We celebrate and export our commitment to free markets, civil rights, and civil liberties, yet we are also a world leader …

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Formalism, Realism, And The War On Drugs, David Cole Jan 2001

Formalism, Realism, And The War On Drugs, David Cole

Georgetown Law Faculty Publications and Other Works

One of the ways our legal system has avoided confronting this ugly reality is through a commitment to legal formalism. Legal formalism allows us to ignore the social determinants that my AUSA friend saw every day as he prosecuted federal drug cases. As my colleague Professor Michael Seidman has suggested, legal formalism, which has been effectively critiqued and displaced by legal realism in many other areas of law, continues to exercise considerable influence over the way we think about criminal law. This formalist approach, in my view, has strongly affected the way we approach the drug problem. One consequence is …

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Poverty And Welfare Policy In The Post-Clinton Era, Peter B. Edelman Jan 2001

Poverty And Welfare Policy In The Post-Clinton Era, Peter B. Edelman

Georgetown Law Faculty Publications and Other Works

This is an important time to talk about people in need. There have been major changes recently in public policy toward those in need, and we have seen enough of their effect to be able to discuss the next steps. We have a new President and Congress. A recession is looking more probable by the day. And the 1996 welfare law is coming up for reauthorization in 2002. So this is a good time to look at how we are doing and what we need to do.

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