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2004

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Comments On A Class Action Rule For Mississippi Comments, Howard M. Erichson Jan 2004

Comments On A Class Action Rule For Mississippi Comments, Howard M. Erichson

Faculty Scholarship

In my primary contribution to this Symposium, I address whether Mississippi ought to adopt a class action rule. In that article, I show that the lack of a class action rule prevents neither mass disputes nor mass aggregate litigation. I argue that for some mass disputes, class actions provide a superior mechanism for dispute resolution, and that Mississippi therefore should adopt a rule permitting class actions. There is another important question, however, which is what such a rule should contain if adopted. Indeed, the questions of whether to permit class actions and what a class action rule should contain are …

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Supreme Court Of The United States As Quasi-International Tribunal: Reclaiming The Court's Original And Exclusive Jurisdiction Over Treaty-Based Suits By Foreign States Against States, The, Thomas H. Lee Jan 2004

Supreme Court Of The United States As Quasi-International Tribunal: Reclaiming The Court's Original And Exclusive Jurisdiction Over Treaty-Based Suits By Foreign States Against States, The, Thomas H. Lee

Faculty Scholarship

The thesis of this Article is that the Constitution vests in the Supreme Court original and exclusive jurisdiction over suits brought by foreign states against States alleging violation of ratified treaties of the United States. The basis for non-immunity in suits by foreign states is the same theory of ratification consent that is presumed to justify suits against States by other States or the United States. Just as the States by ratifying the Constitution agreed to suits in the national court by other States and the national sovereign to ensure domestic peace, they agreed to suits by foreign states in …

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The Great Divide: Considering Section 157a Of The Singapore Companies Act, Pearlie Koh Jan 2004

The Great Divide: Considering Section 157a Of The Singapore Companies Act, Pearlie Koh

Research Collection Yong Pung How School Of Law

The manner in which the powers of a company are carved out to be exercised by either the general meeting of shareholders or its board of directors is often a matter of interpretation of the constitution of the company. This approach retains a fair amount of flexibility in the differing models of power allocation that may be adopted by incorporators, but once carved out, the power allocation usually remains sacrosanct until such time as the constitution is validly altered. This was the position in Singapore before 2003. In 2003, the Companies Act of Singapore was amended to include s 157A, …

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Section 1983 Civil Rights Litigation Colloquium, Erwin Chemerinsky, Martin A. Schwartz Jan 2004

Section 1983 Civil Rights Litigation Colloquium, Erwin Chemerinsky, Martin A. Schwartz

Touro Law Review

No abstract provided.

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2004 Retiree Health Care Update, Finance And Administration Division - Human Resources Jan 2004

2004 Retiree Health Care Update, Finance And Administration Division - Human Resources

RIT Digital Archives

Why Change the Retiree Medical Program?||The Road to Redesign||Highlights of the New Program||A Note About Medicare Reform Legislation||For More Information

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Restitution For Mistaken Gifts, Hang Wu Tang Jan 2004

Restitution For Mistaken Gifts, Hang Wu Tang

Research Collection Yong Pung How School Of Law

This paper investigates when a donor is entitled to restitution for an executed inter vivos gift made pursuant to a mistake. The causal mistake approach adopted by some leading works is considered, critiqued and rejected as a framework to analyse mistaken gifts. The central thesis of this paper is that a gift is an important transaction which engenders social bonds such as love, affection, intimacy, friendship, trust and gratitude, and these bonds influence the parties’ future conduct in the social sphere. This process has been termed as creating a moral economy. Therefore, just as it is important to protect the …

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What Are The "Four Roots Of Capacity And Nature"?, Alan Kam Leung Chan Jan 2004

What Are The "Four Roots Of Capacity And Nature"?, Alan Kam Leung Chan

Research Collection College of Integrative Studies

During the third century C.E., a debate on the relationship between “capacity” (cai 才) and “nature” (xing 性) captured the imagination of the Chinese elite. Historical sources relate that four views were put forward on the subject, which continued to dominate the intellectual scene during the fourth and fifth centuries. Yin Hao 殷 浩 (306–356), a major statesman and leader of the literati, for example, was known especially for his expertise on the four views of “capacity and nature” (caixing) (Shishuo xinyu 1992, 4.34; cf. Mather 1976, 110).1 Writing in the fifth century, Wang Sengqian 王 僧 虔 (426–485) observed …

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Opportunities And Challenges: The Caribbean Involvement In Free Trade Area Ofthe Americas, Myrtle D. Bishop, Samuel J. Chandler Jan 2004

Opportunities And Challenges: The Caribbean Involvement In Free Trade Area Ofthe Americas, Myrtle D. Bishop, Samuel J. Chandler

Fordham International Law Journal

No abstract provided.

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Out Of Troubles And Into Rights: Protection For Gays, Lesbians, And Bisexuals In Northern Ireland Through Equality Legislation In The Belfast Agreement, Mckenzie A. Livingston Jan 2004

Out Of Troubles And Into Rights: Protection For Gays, Lesbians, And Bisexuals In Northern Ireland Through Equality Legislation In The Belfast Agreement, Mckenzie A. Livingston

Fordham International Law Journal

No abstract provided.

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Citizens Cannot Stand For It Anymore: How The United States' Environmental Actions In Afghanistan And Iraq Go Unchecked By Individuals And Non-Governmental Organizations, Wynne P. Kelly Jan 2004

Citizens Cannot Stand For It Anymore: How The United States' Environmental Actions In Afghanistan And Iraq Go Unchecked By Individuals And Non-Governmental Organizations, Wynne P. Kelly

Fordham International Law Journal

As the U.S. government's reach and responsibilities expand, it remains unclear exactly what, if any, input the general populations of Afghanistan, Iraq, or the United States have on government actions. The environmental needs of the two States have concerned the world enough that the United Nations Environment Program ("UNEP") has published a detailed post-conflict report on Afghanistan ("Afghanistan PCA") and a "Desk Study" of the environment in Iraq ("Iraq Desk Study"). There are four basic ways that citizens can attempt either to enjoin U.S. government environmental action abroad or compel the government to adhere to established regulations and agreements: (1) …

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Homeless For Generations: Land Rights For The Chocoe Indians From Mogue, Panama, David E. Cahn Jan 2004

Homeless For Generations: Land Rights For The Chocoe Indians From Mogue, Panama, David E. Cahn

Fordham International Law Journal

Vaporiso knew that the lack of land ownership in his tribe was a great part of the Chocoes' suffering, and he felt that violence was the only way to rectify the problem. Agenda 21 requires member State governments to strengthen national dispute-resolution arrangements in relation to the settlement of land and resource-management concerns. Convention No. 169, which became legally binding on member States in 1991, provides indigenous people with the right to decide how they wish to develop the lands they occupy and use, and set their own priorities for those lands. Convention No. 169 also provides protection from people …

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Introduction, Justice Richard J. Goldstone Jan 2004

Introduction, Justice Richard J. Goldstone

Fordham International Law Journal

This special issue of the Fordham International Law Journal contains seven outstanding articles by jurists from seven countries on three continents. The articles have a common thread in highlighting the necessity for respect of human rights and the human dignity that they are designed to protect. They also demonstrate the significant advances made since the end of World War II of international human rights law. In an age of terrorism there is an inevitable tension between measures designed to protect the lives of innocent civilians and their fundamental civil liberties.

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The International Criminal Court: A New And Necessary Institution Meriting Continued International Support, Judge Philippe Kirsch Jan 2004

The International Criminal Court: A New And Necessary Institution Meriting Continued International Support, Judge Philippe Kirsch

Fordham International Law Journal

This Article highlights some of the key features of the ICC, and concludes by outlining the support it will need in striving to create a world in which devastating actions are properly addressed and punished. Part I of this Note describes the history of the ICC. Part II discusses the crimes within the Court's jurisdiction. Part III further discusses jurisdiction. Part IV reviews the procedure of the court. Part V concerns the current status of the Court.

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The Garden, James Bacchus Jan 2004

The Garden, James Bacchus

Fordham International Law Journal

An essay about the importance of human rights in American foreign policy, framed through the work of Thomas Jefferson. Inspired by the author’s visit to the Jefferson Memorial and the American garden in Washington D.C.

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The Efta Court: An Actor In The European Judicial Dialogue, Carl Baudenbacher Jan 2004

The Efta Court: An Actor In The European Judicial Dialogue, Carl Baudenbacher

Fordham International Law Journal

The vertical dialogue with the national courts of the EEA/EFTA States, in particular the Supreme Courts, has assisted the EFTA Court in developing its case law concerning effect and State liability. Through this jurisprudence, EEA homogeneity in the field of effect and State liability has been maintained. The EEA Main Agreement has been implemented in the domestic legal orders of the EFTA States. EEA secondary law is being implemented in an ongoing process. The same holds true for the rulings of the EFTA Court. There has, to this writer's knowledge, never been a case in which a national court refused …

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War, Violence, Human Rights, And The Overlap Between National And International Law: Four Cases Before The South African Constitutional Court, Albie Sachs Jan 2004

War, Violence, Human Rights, And The Overlap Between National And International Law: Four Cases Before The South African Constitutional Court, Albie Sachs

Fordham International Law Journal

Both violence and international norms on human rights have become globalized. Formerly rigid systems of sovereignty become porous as the enemies and the friends of the rule of law show equal and opposite disregard for State boundaries. Judges in national courts are obliged to put aside their usual textbooks and cases, and open their eyes to legal scholars and commentators like Brownlie and Cassese. Four cases in the ten-year history of South Africa's Constitutional Court have exemplified these points. In each the Court was under pressure because of time--in three because events were unfolding so rapidly, and in one because …

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The Development Of Human Rights In The United Kingdom, Lord Gordon Slynn Jan 2004

The Development Of Human Rights In The United Kingdom, Lord Gordon Slynn

Fordham International Law Journal

There are two myths about the United Kingdom. The first is that we do not have a constitution and did not have any human rights law until very recently. The second myth, very much tied to the first, is that human rights is a new topic. I find that most law students seem to think that they alone have thought about fundamental human rights and that the rest of the world knows nothing about it. As with most myths, however, none of these is absolutely true.

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The United Nations And The Law Of War: Power And Sensibility In International Law, Simon Chesterman Jan 2004

The United Nations And The Law Of War: Power And Sensibility In International Law, Simon Chesterman

Fordham International Law Journal

This article serves as an introduction to the articles that follow, which examine questions of power and sensibility in four discrete ways. They look variously at the moral limits of international law, the extent to which power has been delegated to or asserted by the U.N. Security Council, the successes and failures of efforts at international criminal prosecution, and the challenge of applying the traditional laws of war in the context of a “Global War on Terror.” This introduction outlines the various contributions that follow and sketches out some potential implications.

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Completing The Mandates Of The Ad Hoc International Criminal Tribunals: Lessons From The Nuremberg Process?, Daryl A. Mundis Jan 2004

Completing The Mandates Of The Ad Hoc International Criminal Tribunals: Lessons From The Nuremberg Process?, Daryl A. Mundis

Fordham International Law Journal

On September 2, 2004, the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) filed a formal request for the transfer of the Ademi & Norac case to Croatia, pursuant to Rule 11 bis of the ICTY Rules of Procedure and Evidence (“ICTY RPE”). With this filing, the Prosecutor took an important and positive step towards giving effect to the completion strategy of the ICTY. This Article will discuss the steps taken by the ICTY and its sister institution, the International Criminal Tribunal for Rwanda (“ICTR”), to fulfill their mandates by focusing only on the most senior perpetrators …

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Hostile Protected Persons Or "Extra-Conventional Persons:" How Unlawful Combatants In The War On Terrorism Posed Extraordinary Challenges For Military Attorneys And Commanders, Paul E. Kantwill, Sean Watts Jan 2004

Hostile Protected Persons Or "Extra-Conventional Persons:" How Unlawful Combatants In The War On Terrorism Posed Extraordinary Challenges For Military Attorneys And Commanders, Paul E. Kantwill, Sean Watts

Fordham International Law Journal

First, this Article reviews policymakers' and commentators' categorization of participants in Operation Enduring Freedom, the armed conflict in Afghanistan against al Qaeda and Taliban fighters. This Article concentrate specifically on the status of participants operating at the fringes of the categories of persons protected by the Geneva Conventions. It shows, for example, how al Qaeda and the Taliban fighters tested the bounds of the Conventions by employing methods of “warfare” which rendered them non-distinct and therefore made a determination of their status unclear. This Article demonstrates how policymakers and ultimately the U.S. President created a class of persons--so-called extra-conventional persons--who …

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U.S.-Style Law School ("Law School") System In Korea: Mistake Or Accomplishment?, Hoyoon Nam Jan 2004

U.S.-Style Law School ("Law School") System In Korea: Mistake Or Accomplishment?, Hoyoon Nam

Fordham International Law Journal

This Note will examine Korea's efforts to transform its legal education system. Part I will explain the particularities of the legal profession in Korea and its current legal education system. Part II will discuss the proposed plan for the implementation of the Law School system in Korea and the arguments by the opposition with a brief comparison to Japan's efforts to reform its legal education system. Part III will then address the advantages and disadvantages of the proposed plan.

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Dedication To Professor Valentine Korah, Roger J. Goebel Jan 2004

Dedication To Professor Valentine Korah, Roger J. Goebel

Fordham International Law Journal

This is a tribute (dedication) to Professor Korah for being a a leading academic in European Community competition law, together with the related fields of U.K. competition law and comparative/international antitrust.

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Article 82: Remedies In Search Of Theories?, Ian S. Forrester Jan 2004

Article 82: Remedies In Search Of Theories?, Ian S. Forrester

Fordham International Law Journal

I submit that over the last two or three years, we may observe troubling signs that Article 82 of the EC Treaty is being used more as an adjunct to industrial policy than as a pure competition law tool. This is especially evident in refusal to deal cases. The intervention of antitrust in a situation of refusal to deal is a critical pointer of how an antitrust enforcer perceives itself and of what kind of competition law is in force. At a time when ten new agencies have joined the family, it is especially desirable to approach controversies in a …

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The Treaty Establishing A Constitution For Europe, Jeremy Lever Jan 2004

The Treaty Establishing A Constitution For Europe, Jeremy Lever

Fordham International Law Journal

This Article contains some reflections concerning the Draft Treaty establishing a Constitution for Europe (“the Draft Treaty”), which was approved by the European Council on September 28, 2004 and formally signed in Rome on October 29, 2004. At the time of writing in early 2005, it is presently in the process of ratification by the twenty-five Member States of the European Union (“EU”). The Article is primarily concerned with the extent to which the Treaty is a constitution, and its merits and demerits as such. It does not go in any depth into the political desirability of some of the …

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The Logic & Limits Of The "Exceptional Circumstances Test" In Magill And Ims Health, Christian Ahlborn, David S. Evans, A. Jorge Padilla Jan 2004

The Logic & Limits Of The "Exceptional Circumstances Test" In Magill And Ims Health, Christian Ahlborn, David S. Evans, A. Jorge Padilla

Fordham International Law Journal

In this Article, we show that, in contrast to the Commission's balancing approach in Microsoft, the ECJ's narrow construction of the obligation to license IP under Article 82 of the EC Treaty is based on sound economics and constitutes appropriate public policy. The set of “exceptional circumstances” listed in Magill and IMS Health constitutes a reasonable implementation of the optimal legal standard for the assessment of refusals to licence IP: modified per se legality. In the IP context, an obligation to make property available is a requirement for compulsory licensing. The ECJ test limits compulsory licensing to those situations in …

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Article 82: The Last Frontier – Fighting Fire With Fire?, James S. Venit Jan 2004

Article 82: The Last Frontier – Fighting Fire With Fire?, James S. Venit

Fordham International Law Journal

Since the entry into force of the European Union (“EU”) merger regulation in September 1990, there has been progress toward the acceptance of the need for rigorous economic analysis as the basis for the application of Community competition law. Although the path toward sound economic analysis has been uneven and recognition of the principle has sometimes exceeded its correct application, the increased willingness to acknowledge economic analysis as the basis for rational enforcement action should not be underestimated. The most noticeable and obvious success has been in the field of merger control. But even a statute as venerable as Article …

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The Impact Of Consumer Protection On Banking Legislation In The European Community And The Effect Of The Recent Consumer Protection Proposals, Thomas F. Taylor Jan 2004

The Impact Of Consumer Protection On Banking Legislation In The European Community And The Effect Of The Recent Consumer Protection Proposals, Thomas F. Taylor

Fordham International Law Journal

In this article, I will examine the means by which European Community institutions have used consumer protection, and their impact. I will also examine the new proposals concerning consumer protection, and their impact. Finally, I will look at what the likely outcome of these proposals may be, if implemented.

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The Impact Of Monetary Union And The Euro On European Capital Markets: What May Be Achieved In Capital Market Integration, Rosa Giovanna Barresi Jan 2004

The Impact Of Monetary Union And The Euro On European Capital Markets: What May Be Achieved In Capital Market Integration, Rosa Giovanna Barresi

Fordham International Law Journal

Up to now, the Euro has been successful in replacing the traditional European currencies and in altering the landscape of European Capital Markets. Domestic users of the Euro are almost the same in number as the population of the United STates, although the Gross Domestic Products of the two economies are clearly not comparable. Still, if the Member States within the Euro-area truly want to be recognized as an integrated capital market, some work must be done. This Article will estimate, from current economic thought, what remains to be done and what can be achieved in the short term. Some …

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End Of Exile: Practical Solutions To The Palestinian Refugee Question, Arthur C. Helton Jan 2004

End Of Exile: Practical Solutions To The Palestinian Refugee Question, Arthur C. Helton

Fordham International Law Journal

The objective of this Essay is to add new information and analytical insights to the debate, namely, research about how refugee and compensation solutions have been implemented in other situations. Practical implementation options are examined from a variety of comparative experiences. Examining these options could help soften the political absolutism that characterizes the current impasse on the refugee issue. But there is value in any event in understanding the international system context, and mapping realistic scenarios for such matters as an institutional framework to implement a settlement, the criteria and procedures for relocating refugees, and techniques and methods to award …

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Refugees, Internally Displaced Persons, And International Humanitarian Law, Francois Bugnion Jan 2004

Refugees, Internally Displaced Persons, And International Humanitarian Law, Francois Bugnion

Fordham International Law Journal

The fact that war is the primary cause of people being uprooted prompts us to ask what protection the law of armed conflict affords refugees and displaced persons. How does humanitarian law protect groups of civilians from being forced to flee? What protection does it offer those who have nevertheless been uprooted, and how does that protection interrelate with refugee law? How can the Red Cross and Red Crescent organizations, in particular the International Committee of the Red Cross (“ICRC”), come to the aid of refugees and displaced persons? These are the questions this Article aims to answer. First, however, …

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