Law Commons^™

Judicial Deference To Administrative Interpretation Of Statutes From A Comparative Perspective, Vincent Martenet

Vanderbilt Journal of Transnational Law

This Article examines, from a comparative perspective, how judicial deference to administrative interpretation of statutes takes place and whether it is constitutionally admissible. Since constitutions and statutes rarely deal expressly with this issue, courts may have to determine whether or not such deference is permitted, and, if so, whether generally or in certain cases only. The constitutional, legal, and judicial context prevailing in each country is particularly important in this regard. Nevertheless, it may provide courts with little, if any, guidance on the specific issue of deference to administrative statutory interpretation. In this respect, a nuanced approach along all or …

Cartel Criminalization In Europe: Addressing Deterrence And Institutional Challenges, Francesco Ducci

Vanderbilt Journal of Transnational Law

This Article analyzes cartel criminalization in Europe from a deterrence and institutional perspective. First, it investigates the idea of criminalization by putting it in perspective with the more general question of what types of sanctions a jurisdiction might adopt against collusive behavior. Second, it analyzes the institutional element of criminalization by (1) discussing the compatibility of administrative enforcement with the potential de facto criminal nature of administrative fines under European law and (2) evaluating the trade-offs between an administrative and a criminal model of enforcement. Although a "panoply" of sanctions against both corporations and individuals may be necessary under a …

Executive Agreements Relying On Implied Statutory Authority: A Response To Bodansky And Spiro, David A. Wirth

Vanderbilt Journal of Transnational Law

Until recently, the law surrounding executive agreements has been a subject of attention from a relatively small number of academics concerned with foreign relations law, along with State Department lawyers who have a need to deploy the underlying concepts in concrete determinations. Then, with little advance warning, the Paris Agreement thrust legal doctrines surrounding executive agreements to center stage in public policy debates and in the popular press. President Donald Trump's campaign promise to "cancel" the Paris Agreement has drawn even more attention to the issue. Unfortunately, the result has been a great deal of confusion, often needlessly contributing to …

Nuclear Power, Risk, And Retroactivity, Emily Hammond

Vanderbilt Journal of Transnational Law

The 2011 Fukushima nuclear disaster presented a familiar scenario from a risk perception standpoint. It combined a classic" dread risk" (radioactivity), a punctuating event (the disaster itself), and resultant stigmatization (involving world wide repercussions for nuclear power). Some nuclear nations curtailed nuclear power generation, and decades-old opposition to nuclear power found a renaissance. In these circumstances, risk theory predicts a regulatory knee-jerk response, potentially resulting in inefficient overregulation. But it also suggests procedural palliatives that conveniently overlap with administrative law values, making room for the engagement of the full spectrum of stakeholders. This Article sketches the U.S. regulatory response to …

Beyond Economics: The U.S. Recognition Of International Financial Reporting Standards As An International Subdelegation Of The Sec's Rulemaking Authority, Jacob L. Barney

Vanderbilt Journal of Transnational Law

A final rule promulgated by the Securities and Exchange Commission (SEC) in 2008 allowing foreign private securities issuers to prepare SEC-required financial disclosures under international financial reporting standards (IFRS) as promulgated by the International Accounting Standards Board (LASB) is a highly significant event for U.S. and global capital markets. However, surprisingly few questions have been asked regarding the SEC's legal authority to take such an unprecedented step.

This Note assesses the recent SEC action with regard to IASB from two perspectives--traditional administrative law, with particular emphasis on delegations by government entities to private parties, and international law, with particular emphasis …

Rebuilding A Broken Regime: Restructuring The Export Administration Act, Nathan T.H. Lloyd

Vanderbilt Journal of Transnational Law

The Export Administration Act (EAA) authorizes the President to control the export of "dual-use" goods and technology for national security and foreign policy purposes. "Dual-use" items are goods or technology that are commercial or civil in nature and can be used to produce sophisticated, dangerous weaponry. The EAA expired ten years ago, and although it has been continued by various Executive Orders since, Congress has failed to renew the legislation. As part of the larger export control regime in the United States, the EAA has been an utter failure. Dual-use goods have made their way into the hands of a …

The Anti-Ballistic Missile Treaty Debate: Time For Some Clarification Of The President's Authority To Terminate A Treaty, Joshua P. O'Donnell

Vanderbilt Journal of Transnational Law

This Note explores the legal issues surrounding a president's legal authority to unilaterally withdraw from a treaty. This Note argues that, while international legal issues surrounding treaty termination are not controversial, the domestic legal issues surrounding the president's authority to terminate a treaty are heavily disputed. An analysis of these domestic legal issues does not resolve the controversy. Instead, this Note argues that a functional analysis is required. This functional analysis reveals that the president should have the power to unilaterally terminate a treaty because it maintains foreign policy effectiveness. The Note then argues that the Senate, which informally recognizes …

United We Stand: The Anti-Competitive Implications Of Media Ownership Of Athletic Teams In Great Britain, Jonathan E. Bush

Vanderbilt Journal of Transnational Law

This Note analyzes the increasing integration of the sports and broadcasting industries and the British framework for evaluating the permissibility of transactions furthering such integration. In the context of the recent attempted takeover of British football club Manchester United by Rupert Murdoch's British Sky Broadcasting, the Note examines how the Monopolies and Mergers Commission (MMC) was uniquely poised to fully consider the ramifications of this developing nexus of sports and media and evaluates the significance of the MMC's decision on the future of both industries.

A diverse array of domestic, international, political, and economic issues and implications face any court …

The Reintegration Of Hong Kong Into The People's Republic Of China, John H. Henderson

Vanderbilt Journal of Transnational Law

On June 30, 1997, the United Kingdom will cede administrative control of Hong Kong to the People's Republic of China. Hong Kong achieved great prosperity under British rule, but the affect of China's influence on Hong Kong's future economic success is an issue of much concern as the 1997 transfer of sovereignty nears. This Note analyzes the transfer of sovereignty and what it will mean to Hong Kong's economic future. The author outlines the history of Hong Kong and discusses the British role in creating the prosperous colony. The author then analyzes the Joint Declaration, the document which governs the …

Common Misconceptions: The Function And Framework Of "Trade Or Business Within The United States", Nancy H. Kaufman

Vanderbilt Journal of Transnational Law

In this Article, Professor Kaufman examines the administrative and jurisdictional functions of the Internal Revenue Code's term "trade or business within the United States" in the taxation of foreign persons' income and the existing framework established for the term's interpretation. The author contends that the courts, by relying on two common misconceptions of the term, have made the term's application unpredictable. The author further believes that defining the term according to its functions would serve United States tax policy and economic interests. This definition would focus primarily on facts indicating an ongoing commitment to participation the United States economy. The …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

This Case Digest provides brief analyses of cases that address current transnational legal issues. The Digest includes cases that set forth new legal principles and cases that apply established legal principles to new factual situations. The cases have topical headings and references are given for further research.

EL SALVADORAN SOLDIER WHO REFUSED TO PARTICIPATE IN ASSASSINATION SCHEME GRANTED POLITICAL ASYLUM IN THE UNITED STATES BECAUSE HE DEMONSTRATED "WELL-FOUNDED FEAR" OF PERSECUTION IN EL SALVADOR, Barraza Rivera v. Immigration & Naturalization Service, 913 F.2d 1443 (9th Cir. 1990).

THIRD CIRCUIT HOLDS THAT THE EQUAL ACCESS TO JUSTICE ACT DOES NOT APPLY …

Special Project--Feast Or Famine: Issues, Problems, And Procedures Relating To Massive Relief Efforts With A Focus On The African Crisis, Peggy F. Brandenburg, Susan N. Burgess, Scott N. Greenspun, Sharon M. Janarek, Patrick M. Thomas, Linda L. Kotis

Vanderbilt Journal of Transnational Law

"The profound promise of our era is that for the first time we may have the technical capacity to free mankind from the scourge of hunger. Therefore, today we must proclaim a bold objective--that within a decade no child will go to bed hungry, that no family will fear for its next day's bread, and that no human being's future and capacities will be stunted by malnutrition."

One decade later, the ongoing drought and famine in Ethiopia, Chad, Mozambique and other African countries cruelly portray the failure of that promise. Each year, millions of dollars worth of aid, much of …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Case Digest

Administrative Procedural Due Process Supported in Major Foreign Policy Dispute --Dresser Industries, Inc. v. Baldrige, 549 F. Supp. 108 (D.D.C. 1982).

Permanent Resident Alien Attempting to Reenter the United States is Entitled to Due Process in an Exclusionary Hearing --Landon v. Plasencia, 103 S. Ct. 321 (1982).

Alien does not Have a Fourteenth Amendment Interest in a Procedure to Stay Deportation Where the INS Established the Procedure for Administrative --Wong ChungWen v. Ferro, 543 F. Supp. 1016 (W.D.N.Y. 1982).

A Plaintiff Suing a Foreign Sovereign's Insurer is not Entitled to a Trial by Jury --Goar v. Compania Peruana …

Poland's New Foreign Investment Regulations: An Added Dimension To East-West Industrial Cooperation, Andrzej Burzynski, Julian C. Juergensmeyer

Vanderbilt Journal of Transnational Law

A list of foreign investment opportunities currently available in Poland was recently published. The list was compiled from proposals submitted by the voivodship councils to the division of the Polish Chamber of Commerce, which was established to coordinate the activities of domestic Polish organizations and organizations of Poles living abroad. The list includes the construction of nine automobile repair shops, two enterprises for the manufacture of automobile accessories, organizations for the construction of single-family dwellings, furniture manufacturing enterprises, a short-order restaurant with the capacity of serving one thousand meals per day, three catering complexes to be located on international highways …

The Establishment Of Foreign Bank Agencies And Branches In New York, Clifford D. Harmon

Vanderbilt Journal of Transnational Law

In recent years foreign banking associations have played an increasingly important role in the United States money market. While foreign banks have been operating in the United States since the 1870's, no substantial foreign banking existed in this country until the early 1970's. Since that time, however, there has been rapid expansion, and by 1978 there were 210 foreign bank facilities controlling $66 billion in assets in the United States. Most of this activity is confined to New York, Illinois, and California.

New York alone accounts for three quarters of all foreign bank assets in this country. Although this concentration …

Recent Decisions, James A. Walker, Charles A. Daughtrey, A. Dale Wilson

Vanderbilt Journal of Transnational Law

ADMINISTRATIVE LAW--PRESIDENT'S ATTEMPT UNDER EXECUTIVE ORDER TO REMOVE PRESIDENTIALLY APPROVED CAB ORDER FROM SCOPE OF THE WATERMAN DOCTRINE

James A. Walker

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EUROPEAN COMMUNITIES--TRADEMARK RIGHTS--COURT OF JUSTICE PREVENTS THIRD PARTY FROM AFFIXING TRADEMARK TO GOODS SOLD UNDER ANOTHER MARK

Charles Anthony Daughtrey

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THE TREATY POWER--THE PROPERTY CLAUSE PERMITS THE TRANSFER OF UNITED STATES PROPERTY THROUGH SELF-EXECUTING TREATY

A. Dale Wilson

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

Case Digest

1. ACT OF STATE ACT OF STATE DOCTRINE APPLIES TO INFORMAL ACTIONS OF FOREIGN GOVERNMENTS IF THE GOVERNMENTAL AGENT ACTS WITHIN THE SCOPE OF HIS AUTHORITY

2. ADMIRALTY SIGNIFICANT--RELATIONSHIP-TO-MARITIME-ACTIVITY TEST USED TO DETERMINE ADMIRALTY TORT JURISDICTION

3. ALIEN'S RIGHTS REGULATIONS EXCLUDING RESIDENT ALIENS FROM EMPLOYMENT IN FEDERAL COMPETITIVE CIVIL SERVICE VIOLATE DUE PROCESS CLAUSE OF FIFTH AMENDMENT

4. AVIATION MENTAL DISTRESS ATTACHES TO AN AIR CARRIER'S STRICT LIABILITY FOR BODILY INJURY UNDER THE WARSAW CONVENTION

5. IMMIGRATION AND NATURALIZATION CONGRESS MAY GRANT CITIZENSHIP TO FOREIGN-BORN CHILDREN OF CITIZEN FATHERS, WHILE DENYING SAME TO OFFSPRING OF CITIZEN MOTHERS

6. …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

Case Digest

1. ADMINISTRATIVE

NON-VESSEL-OPERATING COMMON CARRIERS HAVE BURDEN OF PROOF TO JUSTIFY THE REASONABLENESS OF PROPOSED RATE INCREASE IN A FEDERAL MARITIME COMMISSION PROCEEDING

2. ADMIRALTY

COMPARATIVE NEGLIGENCE STANDARD APPLICABLE TO THE CANAL ZONE COMPANY DOES NOT SUPERSEDE THE RULE OF DIVIDED DAMAGES BETWEEN VESSELS

FAILURE TO OBEY COMMANDS OF SHIP MASTER BECAUSE OF VOLUNTARY INTOXICATION CONSTITUTES WILLFUL DISOBEDIENCE

PREJUDGMENT INTEREST FROM DATE OF JUDICIAL DEMAND IS PROPER WHEN ORIGINAL ACTION AT LAW Is CHANGED TO ADMIRALTY BY WITHDRAWAL OF JURY DEMAND

THE PERSONAL REPRESENTATIVE ALONE HAS STANDING TO BRING A WRONGFUL DEATH ACTION IN GENERAL MARITIME LAW

PERMITTING …

The 1971 I.C.J. Advisory Opinion On South West Africa (Nambia), Preston Brown

Vanderbilt Journal of Transnational Law

South Africa has administered the adjoining territory of South West Africa (Namibia) for over fifty years. Initially, that administration was granted to South Africa when it was designated a mandatory by the League of Nations. Since the dissolution of the League 25 years ago, South Africa's administration of the territory and, more recently, its right to administer, have been the subject of continued and escalating controversy.

The most recent development in this confused situation is the advisory opinion that was rendered in June, 1971, by the International Court of Justice. That opinion was requested by the Security Council of the …

Internationally Uniform Probate Law--A Method For Improving Administration Of Multinational Estates, John G. Webb, Iii

Vanderbilt Journal of Transnational Law

The need to coordinate succession laws of different nations was recognized as early as 1893 at the first Hague Conference where attempts were begun to coordinate the laws of succession on death through multilateral conventions. Notwithstanding so early an effort, however, the administration of multinational estates has remained plagued by diversity of national laws governing succession on death. The resulting confusion and inefficiency of administration has often frustrated the testamentary intentions of decedents of many nationalities. While no viable uniformity has been attained among nations, the need for consistency increases. Half a million United States civilian citizens live abroad, and …

The Role Of Law In The Negotiated Settlement Of International Disputes, James K. Irvin

Vanderbilt Journal of Transnational Law

One of the chief functions of any legal system is to provide the machinery for settling disputes between members of the society which the system serves. No legal system can be expected to solve all such disputes, but law can create an atmosphere in which the parties themselves may effect, without bloodshed, the resolution, minimization or avoidance of disputes. The disputants may choose an arbiter or conciliator to reach a settlement for them, or they may bargain and compromise until they find a common basis for an agreement ending the dispute. The latter process, called negotiation, is the most effective …

The French Conseil D' Etat: A Case Study In Boundary Maintenance, Robert Carp, Harrell Rodgers

Vanderbilt Journal of Transnational Law

Very little is known about the role that courts play in the total political system of a nation. In two recent works Professors Walter Murphy and Joseph Tanenhaus have centered attention on this question and have isolated some of the major functions of courts and developed several working hypotheses concerning these functions. They suggest that one of the major functions of constitutional courts consists of "defining the rules of the political game and determining the boundaries of authority between competing public officials as well as the boundaries between governmental authority and individual liberty." In approving or disapproving the acts of …