Digital Commons Network^™

Neotrusteeship Or Mistrusteeship? The "Authority Creep" Dilemma In United Nations Transitional Administration, Christian E. Ford, Ben A. Oppenheim

Vanderbilt Journal of Transnational Law

State failure poses one of the greatest threats to international peace and security. The collapse of governing institutions breeds civil wars, generates refugee flows, causes enormous civilian suffering, foments instability in neighboring countries, and provides safe havens for transnational criminal and terrorist organizations. As a result, commentators and policymakers have increasingly called for a remedy to the problem of state failure. One of the most compelling arguments is to draw on an old legal institution: international trusteeship by the United Nations (U.N.). This Article argues that while trusteeship may prove effective in managing state failure, it also carries risks. International …

Resolving The Dissonance Of Rodriguez And The Right To Education, Angela A. Holland

Vanderbilt Journal of Transnational Law

Education exists as a fundamental right recognized by countries worldwide. Overwhelming support for the right to education is reflected in international human rights instruments, including the International Convention on Economic, Social, and Cultural Rights and the Convention on the Rights of the Child. Notwithstanding a near global consensus on this issue, the United States has refused to recognize a federal right to education since the 1973 Supreme Court decision San Antonio Independent School District v. Rodriguez. The ill-effects of Rodriguez linger today; glaring disparities continue to mar the educational prospects of women, minorities, and poor children in the United States. …

Increasing Global Demand For An Uncensored Internet, Andrew W. Lloyd

Vanderbilt Journal of Transnational Law

This Note discusses efforts to defeat government censorship of the Internet. In the narrow meaning of that idea, this Note initially discusses technological efforts to circumvent government-imposed Internet firewalls; in the broader sense, it addresses the larger goal of inducing censoring governments to bring their firewalls down. Proposed U.S. legislation would provide U.S. government funding of censorship circumvention technology. This Note discusses why such funding is not a good approach. Absent larger international efforts, private action--within both the U.S. and censoring countries--has the best chance of bringing down government-run firewalls. This Note discusses how the U.S. government can best facilitate …

Do Norms Still Matter? The Corrosive Effects Of Globalization On The Vitality Of Norms, Patrick J. Keenan

Vanderbilt Journal of Transnational Law

Why does the process of globalization undermine the power of social norms to regulate behavior? Norms are the social regularities that shape individual behavior and help to create vibrant--or dysfunctional--communities. Most theories of norms do not account for the many ways that globalization affects the foundations of norms. This Article fills the gap by developing a more robust theory of the informal regulation of behavior that considers the ways that the process of globalization can interfere with the creation of norms and erode their power.

Drawing on behavioral economics, sociology, and criminology, the theory proposed in this Article contains three …

Trade, Empires, And Subjects--China-Africa Trade, Uche E. Ofodile

Vanderbilt Journal of Transnational Law

Since 2000, the interest of the People's Republic of China (China) in Africa has grown steadily. Trade between China and Africa has grown exponentially. China-Africa trade volume increased from $10 billion to $18 billion between 2000 and 2003. In 2005, total trade between Africa and China surged to $40 billion, and in 2006 China-Africa trade was valued at $55.5 billion. A third of China's crude oil imports come from Africa. In the West, reaction to China's involvement in Africa has bordered on suspicion and paranoia. Policy makers and analysts are concerned that China could gain control over Africa's vast and …

The Regulation Of Ddt: A Choice Between Evils, Ashley K. Martin

Vanderbilt Journal of Transnational Law

DDT has the potential for great benefit and great harm. It is currently the most efficient method for controlling malaria, particularly for those countries the disease affects most. However, it also causes global pollution and damages the health of humans and wildlife. These characteristics of DDT make regulating DDT difficult because they create a need for the continued use of DDT to prevent the debilitating effects of malaria, but also a need to ban the use of DDT in order to prevent its negative environmental and health effects. These conflicting needs correlate to diverging interests of developing and developed countries. …

Authorizing Subnational Constitutions In Transitional Federal States, Jonathan L. Marshfield

Vanderbilt Journal of Transnational Law

Not all federal systems permit their constituent units to adopt constitutions. This Article considers whether, and under what circumstances, subnational constitutions tend to contribute to the volatility or stability of their respective federal systems. By examining the role that subnational constitutions played in South Africa's celebrated democratization, this Article observes that a transitional federal state can increase its flexibility and adaptability by merely authorizing subnational constitutions. The Article concludes that federal systems, particularly those undergoing fundamental change, can be better equipped to manage regime-threatening conflicts and perpetuate a democratic political culture if they permit constituent units to adopt constitutions.

Voodoo Economics: A Look Abroad For A Supply-Side Solution To America's Campaign-Finance Riddle, Matthew T. Sanderson

Vanderbilt Journal of Transnational Law

The title of this Note "voodoo economics" is, at its core, an analogy: U.S. campaign-finance regulation operates like a price ceiling in the political money marketplace. Political campaigns are financed through money-for-access transactions and campaign-finance regulation caps the level of exchange. Like any other price ceiling, regulation is both effective and flawed. It suppresses the "price" of political money but inherently falls victim to some market players' avoidance activities. This price-ceiling analogy, among other things, makes apparent that many proposals forwarded by pro-regulation and deregulation advocates cannot solve the United States' century-old campaign-finance riddle. Instead, attention should turn to shaping …

A Coherent Policy Proposal For U.S. Residence-Based Taxation Of Individuals, Cynthia Blum, Paula N. Singer

Vanderbilt Journal of Transnational Law

Taxation of the worldwide income of U.S. citizens has been a feature of the U.S. income tax since the Revenue Act of 1913. This Article proposes that the United States abandon its imposition of income tax based on citizenship and institute a new system for taxing individuals based solely on residence. This includes (1) a revised definition of "residency status" that would be based on physical presence and be monitored through an entry-exit system, (2) a proposal for an exit tax imposed on termination of residence with respect to unrealized appreciation accrued during the period of residence, and (3) new …

Recapturing Public Power: Is Investment Arbitration's Engagement Of The Public Interest Contributing To The Democratic Deficit?, Barnali Choudhury

Vanderbilt Journal of Transnational Law

Globalization has changed the way sovereign states regulate their societies. The effect of globalization has been the creation of several international agreements that transfer decision-making from the national to the international level. An important subset of these agreements is international investment treaties; an estimated 2,500 of these treaties have been entered into worldwide by a number of states, especially in the last ten to twelve years. As these agreements almost always contain arbitration clauses, the number and scope of arbitrations handling disputes under these investment agreements have grown exponentially. Arbitrators governing these disputes are now regularly reviewing domestic public interest …

Looking Beyond The Dabhol Debacle: Examining Its Causes And Understanding Its Lessons, Preeti Kundra

Vanderbilt Journal of Transnational Law

This Note analyzes foreign direct investment in India, looking into the investment troubles surrounding the Dabhol power project, India's largest foreign investment project to date. After providing an introduction to the mechanics of project finance and a backdrop to the Dabhol power project, the Note considers whether the Indian government's actions, specifically the use of the Indian legal system, constituted "total expropriation" and violations of international law. Additionally, this Note considers what systemic changes India can make in order to create a more investment-friendly environment in the post-Dabhol context.

Coining A New Jurisdiction: The Security Council As Economic Peacekeeper, Kristen E. Boon

Vanderbilt Journal of Transnational Law

Economic conditions are linked to international peace and security. Financial crises, mismanagement of natural resources, food shortages, and climate change can create transnational effects, including conflict. The Security Council is the executive organ of the United Nations, with primary jurisdiction over the maintenance of international peace and security. This Article explores the extent to which the Security Council can and should assert jurisdiction over economic and financial issues.

In the past decade, the economic dimensions of conflict, including the economic causes of war, economic agendas of state and nonstate actors, and economic measures for reconstruction have become central to the …

The Montreal Convention: Can Passengers Finally Recover For Mental Injuries?, Mckay Cunningham

Vanderbilt Journal of Transnational Law

Since the 1920s, recovery for accidents suffered on international flights has been subject to the Warsaw Convention's limitation of "bodily injury." To address perceived inequities stemming from this limitation, some courts invoked a liberal interpretation of the phrase "bodily injury," and the resulting and fragmented judicial precedent threatened the treaty's goal of international uniformity. Although Warsaw's long-awaited replacement, the Montreal Convention, retains the "bodily injury" language, a close study of the treaty's history and, more importantly, the negotiations among the signatories' delegates suggests that the great majority of nations intended to broaden the allowable recovery beyond strict bodily injury and …

International Law's Mixed Heritage: A Common/Civil Law Jurisdiction, Colin B. Picker

Vanderbilt Journal of Transnational Law

This Article provides the first application of the emerging mixed jurisdiction jurisprudence to a comparative analysis of international law. Such a comparative law analysis is important today as the growth and increasing vitality of international juridical, administrative and legislative institutions is placing demands on international law not previously experienced. International law is unsure where to look for help in coping with these new stresses. In significant part this isolation can be attributed to a general view among international law scholars that international law is sui generis, and hence there is little to be gained from national legal systems. This Article …

Towards Global Convenience, Fairness, And Judicial Economy, J. S. Hill

Vanderbilt Journal of Transnational Law

The Supreme Court held in Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., that federal district courts can dismiss cases under forum non conveniens before determining jurisdiction. The facts of Sinochem did not allow the Court to determine whether a court may conditionally dismiss under "forum non conveniens" before determining jurisdiction, but this Note argues that district courts should be able to do so. The issue of conditional dismissal before jurisdiction arises only where subject matter or personal jurisdiction is difficult to determine, "forum non conveniens" factors weigh heavily in favor of dismissal, and the district court intends to …

Dutch Treat: Netherlands Judiciary Only Goes Halfway Towards Adopting Delaware Trilogy In Takeover Context, Danielle Quinn

Vanderbilt Journal of Transnational Law

This Note examines Dutch takeover law in light of the current inter-EU competition to attract entities to individual Member States. The recent hostile takeover of the Dutch bank, ABN AMRO, provides an excellent example of the Netherlands' opportunity to use its judiciary to solidify its reputation as a competitive, business-friendly jurisdiction. The Dutch Enterprise Chamber can aid the Netherlands in becoming the preeminent EU country--a similar status to Delaware's Chancery Court in the United States. Although the Enterprise Chamber attempted to introduce Delaware law in ABN AMRO, it unfortunately misapplied the law. As a result, the Dutch Supreme Court had …

Law Triangle: Arbitrating International Reinsurance Disputes, J. L. Murphy

Vanderbilt Journal of Transnational Law

The McCarran-Ferguson Act was enacted to preserve the longstanding prerogative of the States to regulate the insurance industry. States have acted in accordance with this statute to declare arbitration agreements in insurance contracts invalid. However, the Senate has since ratified the New York Convention and appended implementing legislation to the Federal Arbitration Act that obligates domestic courts to recognize arbitration agreements in all international contracts. In an odd convergence of authority, a functional conflict arises between these three bodies of law: the federal law says that state law controls in this area, even over other federal law that might incidentally …

The Un-Exceptionalism Of U.S. Exceptionalism, Sabrina Safrin

Vanderbilt Journal of Transnational Law

This Article challenges the prevailing view that the United States acts exceptionally by examining the insufficiently considered legal exceptionalism of other countries. It puts U.S. exceptionalism in perspective by identifying European exceptionalism as well as noting developing country exceptionalism, pointing to the exceptional rules sought by the European Union and by developing countries in numerous international agreements and institutions. It argues that most nations seek different international rules for themselves when they perceive themselves to have an exceptional need. Indeed, in cases of exceptional need, numerous countries believe themselves entitled to exceptional legal accommodation and may even perceive other countries' …

Comparative Models Of Reporting Mechanisms On The Status Of Trafficking In Human Beings, Mohamed Y. Mattar

Vanderbilt Journal of Transnational Law

A comprehensive approach to combating trafficking in human beings requires precise knowledge of the scope of the problem and constant evaluation of government responses. Reporting on the status of human trafficking achieves both goals. This Article is designed to examine the various human trafficking reporting mechanisms, including reports that states are required to submit to the United Nations as well as national reports whereby governments engage in a process of self-assessment. Comparative models from Europe and the United States will be examined. The Article analyzes reports released by interministerial task forces as well as congressional hearings held on progress made …

Dubai Or Not Dubai?: A Review Of Foreign Investment And Acquisition Laws In The U.S. And Canada, Chris Lalonde

Vanderbilt Journal of Transnational Law

The proposed purchase of a British company that controlled several ports in the United States by Dubai Ports World could accurately be described as one of the most politically contentious acquisitions in U.S. history. The transaction raised questions not only about U.S. foreign investment laws but provoked national security concerns, as well. Similar issues were raised more recently during the acquisition of a share in Nasdaq by the Dubai stock exchange. In the same vein, Canada has seen similar issues arise during recent transactions involving domestic companies--most notably the acquisition of PrimeWest Energy by TAQA, the national energy company of …

Whose Child Is This?: Genetic Analysis And Family Reunification Immigration In France, Tera R. Murdock

Vanderbilt Journal of Transnational Law

In an attempt to limit fraudulent family reunification immigration and control how many migrants enter its borders, France statutorily implemented the use of DNA testing in family reunification immigration in late 2007. Where an immigrating child possesses suspicious documentation, and the child is seeking to reunite with his or her mother in France, the statute provides for voluntary DNA testing to establish that the child has a biological connection with the mother. The requirement of proof of a biological link between family members is diametrically opposed to family recognition policies that apply to French citizens, which emphasize the establishment of …

Commercial Peace And Political Competition In The Crosshairs Of International Arbitration, Thomas E. Carbonneau

Faculty Scholarship

This article examines the mixed effect of arbitration upon the generation of international law norms; in particular, how arbitration can generate private law norms so effectively and yet still face strong resistance in public international law processes and controversies. The work of arbitration for international commercial litigation has been nothing less than spectacular. In both the private international and domestic civil contexts, arbitration has provided viable remedial solutions and functional adjudication when the law was either nonexistent or incapacitated. It has supplied a workable and adaptable trial system, which-on the international side-could also generate substantive legal norms. Arbitration thereby has …

The Revolution In Law Through Arbitration, Thomas E. Carbonneau

Faculty Scholarship

My subject is arbitration. I explore how its re-emergence during the last forty years has revolutionized the thinking about, and the practice of, law. The development of a "strong federal policy favoring arbitration" cast aside traditional acceptations about law and adjudication. The rule of law-the human civilization associated with law and the legal process-has been profoundly, perhaps irretrievably, altered by the rise of arbitration. The landmark cases in labor and employment arbitration- Alexander v.Gardner-Denver Company (the "old time religion") and Gilmer v. Interstate/JohnsonLane Corporation (the "new age" thinking)- attest to the enormous distance that separates past and present concepts of …

Constitutional Change And Responsibilities Of Governance Pertaining To The Faith-Based And Community Initiative, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

This paper, commissioned and published in June 2008 in connection with the White House-sponsored Conference on Innovations in Effective Compassion, addresses the changing legal environment relevant to government partnerships with religious providers of social services. In particular, the paper maps the federal government's regulatory agenda in connection with the Faith-Based and Community Initiative (FBCI) onto the changes in constitutional law over the past several decades. After briefly surveying the key developmental points in the relevant constitutional law, the paper explores specific changes in federal regulations governing aid to religious providers of welfare services, and considers the litigation efforts that have …

Ball On A Needle: Hein V. Freedom From Religion Foundation And The Future Of Establishment Clause Adjudication, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In Hein v. Freedom from Religion Foundation, decided in June of 2006, the Supreme Court ruled that federal taxpayers lacked standing to bring an Establishment Clause challenge to a series of conferences designed to promote the Faith-Based and Community Initiative. The explicit grounds for Justice Alito's opinion, speaking for a plurality, is a distinction between legislative decisions to tax and spend for religion - still challengeable by taxpayers - and discretionary executive branch action, which taxpayers may not challenge.

This paper takes a close look at Hein, examines its conceptual underpinnings, and analyzes the questions likely to follow in its …

The Cross At College: Accommodation And Acknowledgment Of Religion At Public Universities, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In the fall of 2006, President Gene Nichol of the College of William & Mary decided that the college - a public institution - should no longer display a cross on the altar table of the college's Wren Chapel. He ordered the cross moved to a back room, from which it could be returned to the altar table during Christian worship. This decision sparked an outcry from many Christian conservatives, who asserted that President Nichol was undermining the college's historical legacy. After a period of campus furor, a special Committee proposed and the President accepted a compromise - the cross …

Criminal Law And The Pursuit Of Equality, Donald Braman

GW Law Faculty Publications & Other Works

This Article argues that, to make their vision of justice a reality, egalitarians need to change both their focus and their tactics with respect to criminal law. The tragedy of contemporary criminal justice is not that individual rights are too narrowly construed, but that those living in disadvantaged communities are injured both by crime and counter-productive law enforcement. The remedies that egalitarians have historically looked to - remedies articulated within the framework of individual rights - are poorly suited to address the systematic reproduction of inequality that results.

First, egalitarians will need to shift their focus from the racially motivated …

Cultural Cognition And Synthetic Biology Risk Perceptions: A Preliminary Analysis, Donald Braman, Gregory N. Mandel, Dan M. Kahan

GW Law Faculty Publications & Other Works

We describe the results of a study to determine the synthetic-biology risk perceptions of a large and diverse sample of Americans (N = 1,500). The survey found that hierarchical, conservative, and highly religious individuals - one who normally are skeptical of claims of environmental risks (including those relating to global warming) - are the most concerned about synthetic biology risks. We offer an interpretation that identifies how selective risk-skepticism and risk-sensitivity can convey a cultural commitment to traditional forms of authority.

Why Do Women Lawyers Earn Less Than Men? Parenthood And Gender In A Survey Of Law School Graduates, Neil H. Buchanan

GW Law Faculty Publications & Other Works

Using a dataset of survey responses from University of Michigan Law School graduates from the classes of 1970 through 1996, I find that fathers tend to receive higher salaries than non-fathers (a "daddy bonus"). In addition, mothers earn less than non-mothers (a "mommy penalty"). There is also some statistical support for the inference that there is a penalty associated purely with gender (women earning less than men, independent of parenthood), another result that is unique to the literature. Analyzing full- or part-time status as well as work hours also suggests a key difference between women and men. Those who take …

Regional Protection Of Human Rights (Introduction), Dinah L. Shelton

GW Law Faculty Publications & Other Works

This book focuses on regional approaches to human rights. It discusses regional tools such as treaties, conventions, and case law. The book then discusses state obligations under regional agreements and during various conditions, such as an emergency. Next, the book discusses regional institutions such as courts and the procedures for attempting to receive redress. The book concludes by discussing responses to violations of human rights and looking ahead by examining suggestions for moving forward.