Law Commons^™

The Constitutional Logic Of The Common Law, Douglas E. Edlin

Vanderbilt Journal of Transnational Law

This Article uses two concepts from philosophical logic, the transitive property and syllogistic reasoning, to examine the history and theory of the common law. More specifically, the Article uses the transitive property to challenge the claims of sovereignty theorists that parliamentary supremacy is truly the most fundamental historical and theoretical basis of the British constitution. Instead, the transitive property helps show that the history and theory of the common law tradition has long provided a role for independent courts in maintaining the rule of law as a foundational principle of the British constitution. The Article then closely analyzes the reasoning …

The "Common-Law Regime" Of Foreign Sovereign Immunity: The Actual Possession Rule In Admiralty, David J. Bederman

Vanderbilt Journal of Transnational Law

It has been a long-standing rule in admiralty that in order for a foreign sovereign to assert immunity in U.S. courts, the res that is the object of the maritime claim must be in the actual possession of the foreign state at the time the case is brought. Inasmuch as Samantar recognized the existence of a "common-law regime" that preexisted the Foreign Sovereign Immunities Act (FSIA), this Article examines whether the actual possession rule remains in force today. The FSIA codified the actual possession rule in its provisions for the handling of admiralty claims against foreign sovereigns, but this has …

The Immunity Of State Officials Under The Un Convention On Jurisdictional Immunities Of States And Their Property, David P. Stewart

Vanderbilt Journal of Transnational Law

The U.S. Supreme Court decided in Samantar v. Yousuf that claims of immunity by individual foreign officials in U.S. courts will be determined not under the Foreign Sovereign Immunities Act but instead under the common law, drawing on principles of international law. The 2004 UN Convention on the Jurisdictional Immunities of States and Their Properties represents the most recent and comprehensive international thinking on the question of jurisdictional immunities of foreign states and their officials in foreign courts. Under the Convention, individual representatives of a state acting in that capacity are entitled to the same immunities as the state itself. …

Samantar And Executive Power, Peter B. Rutledge

Vanderbilt Journal of Transnational Law

This essay examines Samantar v. Yousuf in the context of broader debate about the relationship between federal common law and executive power. Samantar represents simply the latest effort by the Executive Branch to literally shape the meaning of law through a process referred to in the literature as "executive lawmaking." While traditional accounts of executive lawmaking typically have treated the idea as a singular concept, Samantar demonstrates the need to bifurcate the concept into at least two different categories: acts of executive lawmaking decoupled from pending litigation and acts of executive lawmaking taken expressly in response to litigation. As Samantar …

The Dog That Caught The Car: Observations On The Past, Present, And Future Approaches Of The Office Of The Legal Adviser To Official Acts Immnunities, John B. Bellinger Iii

Vanderbilt Journal of Transnational Law

The Supreme Court's decision in Samantar v. Yousuf vindicated the position of the State Department's Office of the Legal Adviser, which had long argued that the immunities of current and former foreign government officials in U.S. courts are defined by common law and customary international law as articulated by the Executive Branch, rather than by the Foreign Sovereign Immunities Act of 1976. But the decision will place a burden on the Office of the Legal Adviser, which will now be asked to submit its views on the potential immunity of every foreign government official sued in the United States. The …

Globalization And National Culture: Recent Trends Toward A Liberal Exchange Of Cultural Objects, Kurt G. Siehr

Vanderbilt Journal of Transnational Law

In discussing trends toward liberal exchange of cultural objects, it must be stressed that the exchange should be a legal exchange. This, however, is not easy to define because legal systems differ with respect to the qualifications of legality of art trade. Since United States v. Schultz, there is less of a disparity between Europe and the United States as to the characterization of illegal excavations as a kind of theft in countries claiming that archaeological finds are state property. Also, with respect to export prohibitions, there is not much disagreement so far: in all countries, foreign export prohibitions are …

Enlisting The U.S. Courts In A New Front, Debra M. Strauss

Vanderbilt Journal of Transnational Law

The time has come to extend the national approach that has been used successfully to dismantle the infrastructure of hate groups to the international realm against terrorist groups. The foundation of this approach is a private right to a cause of action apart from any military or diplomatic efforts by the government. In this Article, Professor Strauss analyzes case precedents under several federal statutes--the Antiterrorism Act of 1991, the Antiterrorism and Effective Death Penalty Act of 1996, the Torture Victim Protection Act, the Alien Tort Claim Act--as well as state common-law tort claims, including aiding and abetting liability. Professor Strauss …

Defamation Law And Free Speech: Reynolds V. Times Newspapers And The English Media, Andrew T. Kenyon, David F. Partlett, Clive P. Walker

Vanderbilt Journal of Transnational Law

The common law of defamation cut the balance between speech and reputation decisively in favor of reputation and allowed for the imposition of significant damages against media outlets that defamed. For the last four decades, U.S. media outlets have been insulated against the common law rules by the United States Supreme Court's landmark decision in New York Times Co. v. Sullivan. Following Sullivan, Commonwealth countries clung steadfastly to common law rules and are only now beginning to modify the common law rules to provide speech and media protections. Rather than following Sullivan by adopting constitutional protections, however, Commonwealth courts have …

Birthright Citizenship In The United Kingdom And The United States, Michael Robert W. Houston

Vanderbilt Journal of Transnational Law

The common law concept of territorial birthright citizenship is the foundation for the Fourteenth Amendment's Citizenship Clause, which confers citizenship on those born within the United States and "subject" to its "jurisdiction." Likewise territorial underpinnings were the basis for over 375 years of birthright citizenship within the United Kingdom. Contemporary discourse with respect to territorial birthright citizenship, however, has shifted from its common law basis and now focuses on whether citizenship ought to inhere in children born to illegal immigrants. In the United Kingdom, the British Nationality Act of 1981 abandoned territorial birthright citizenship in favor of parentage based citizenship. …

Negotiation And Native Title: Why Common Law Courts Are Not Proper Fora For Determining Native Land Title Issues, Geoffrey R. Schiveley

Vanderbilt Journal of Transnational Law

The displacement of indigenous populations is an obvious but often-overlooked consequence of worldwide European colonization. Until relatively recently, the rights of these groups have consistently been held to lower standards of protection than those of their colonizing counterparts, partly through the use of doctrines such as terra nullius. While earlier decades established the groundwork for recognition of these rights, in the 1990s native rights issues became of greater importance to both the international community and individual nations. Some of this heightened interest can be attributed to a series of high-profile common law court cases that provided native populations with favorable …

International Issues In Common Law Choice Of Law, Harold G. Maier

Vanderbilt Journal of Transnational Law

In the year 1274, Sir Hugh LaPape, knight, vassal, and retainer of his liege lord, Edward the First of England, stood on a hill outside the city of Florence, Italy, and wept. Four years before, Sir Hugh had set off for the Holy Land at the call of his king, leaving behind him a beautiful palace with tall towers, shining in the morning sun. Now he surveyed the remains of that palace, a pile of rubble, in growing anger. Although a vassal of the English king, Sir Hugh had some years before removed himself from England to Florence, Italy, where …

The Movement Toward Statute-Based Conspiracy Law In The United Kingdom And The United States, Kenneth A. David

Vanderbilt Journal of Transnational Law

A single criminal charge of conspiracy, because it simultaneously involves an inchoate as well as a substantive offense, is characterized by a duality that for years has created confusion and uncertainty as to the proper prosecution and punishment for the crime. The author of this Note places responsibility for this confusion primarily on the judges whose rulings have produced a highly incoherent body of common law and secondarily on the complacent legislatures that have allowed judicial interpretation to shape conspiracy law in a haphazard manner.

The Note compares the approaches to conspiracy law taken by the United Kingdom and the …

The Impact Of Freedom Of Information Legislation On Criminal Discovery In Comparative Common Law Perspective, Michael Taggart

Vanderbilt Journal of Transnational Law

This Article examines the effect of freedom of information legislation on criminal discovery in the United States, Canada, Australia, and New Zealand. While all of these countries share the common law tradition and have comparable freedom of information legislation, Professor Taggart notes that the impact of that legislation on the law and practice of criminal discovery varies in each country.

The United States courts generally have resisted attempts by criminal defendants to gain access to a wider range of material under the Freedom of Information Act than available by conventional discovery. So far the courts are unwilling to allow that …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

In Common Law in Southern Africa, Kutner surveys the judgments that are published in South African Law Reports and the official law reports of other southern African states from 1947 to the present. English language commentaries on the cases and statutes discussed in the text are cited in the notes. A Table of Statutes, Table of Cases, Conflict of Laws Index and Torts Index also are provided.

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

ADMIRALTY JURISDICTION EXISTS IN CASES STEMMING FROM BOAT COLLISIONS ON NAVIGABLE WATERS REGARDLESS OF THE COMMERCIAL OR NONCOMMERCIAL NATURE OF THE VESSELS INVOLVED--Foremost Insurance Co. v. Richardson, 102 S. Ct. 2654 (1982).

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SHIPOWNER MAY ATTACH CHARACTER'S PROPERTY AS SECURITY FOR BREACH OF A CHARTER CONTAINING A FORUM SELECTION CLAUSE--Polar Shipping, Ltd. v. Oriental Shipping Corp., 680 F.2d 627 (9th Cir. 1982).

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WORKER EMPLOYED ABOARD AN OFFSHORE DRILLING PLATFORM MAY BRING A CLAIM UNDER MARITIME TORT LAW FOR WRONGFUL DISCHARGE--Roberie v. Gulf Oil Corp., No. 820013 (W.D. La.Aug. 4, 1982)

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THE IMMIGRATION AND NATURALIZATION ACT DOES NOT APPLY …

The Uniform Foreign Money-Judgments Recognition Act: A Survey Of The Case Law, Carol C. Honigberg

Vanderbilt Journal of Transnational Law

The Uniform Foreign Money-Judgments Recognition Act's genesis lay in the belief that a state's codification of its rules on the recognition of foreign money-judgments would increase the likelihood that similar judgments rendered by that state would be recognized abroad. The treatment of United States judgments in the courts of foreign nations concerned the Commissioners on Uniform State Laws because United States courts traditionally accord far better treatment to foreign judgments than is accorded United States judgments abroad. The recognition and enforcement of foreign judgments, or recognition practice, has long posed special problems because of the vast differences in the various …

Commercial Hardship And The Discharge Of Contractual Obligations Under American And British Law, John J. Gorman

Vanderbilt Journal of Transnational Law

There are several doctrines under which contractual obligations have been judicially discharged. This Note will examine the United States doctrine of commercial impracticability or commercial impossibility and the English doctrine of frustration of contract or frustration of the commercial objective. The focus of this Note therefore is on those situations in which discharge from contractual obligations is sought because of supervening economic hardship. Part II provides a brief historical account of the development of the English common law doctrine of impossibility. Part III traces the development of the United States concept of commercial impossibility and commercial impracticability from the early …

Book Review, Igor I. Kavass

Vanderbilt Journal of Transnational Law

The limited use of American case law in the Commonwealth countries should not be surprising. With the exception of English cases, the decisions of other Commonwealth countries receive the same indifferent treatment in all Commonwealth jurisdictions; the English courts studiously ignore the decisions of other Commonwealth countries. For that matter, American courts do not consult the case law of English and other Commonwealth countries all too frequently. Espinoza v. Farah Manufacturing Co. is a recent example in point. In that case, the Supreme Court was asked to interpret the meaning of the terms "nationality" and "national origin" as used. in …

The Community Court And Supremacy Of Community Law: A Progress Report, Peter Hay, Vicki Thompson

Vanderbilt Journal of Transnational Law

The dedication of an annual issue of the Vanderbilt Journal of Transnational Law, to the case law of the Court of Justice of the European Communities is an appropriate tribute to the significant contribution of the Community Court to the integration of the European Communities. The Court of Justice is perhaps the most remarkable and successful of the common institutions (Council, Commission, Parliament, and Court), which the process of European integration has produced thus far. The Communities--Common Market, Coal and Steel Community, and Euratom--have been beset by numerous political and economic problems; integration beyond the original Treaties, and sometimes within …

The Bases And Range Of Federal Common Law In Private International Matters, Harold G. Maier

Vanderbilt Journal of Transnational Law

During the past decade, there has been increasing attention on the part of legal scholars to the need for a clear statement outlining the divisions of state and federal power in this difficult area. In two important cases, the Supreme Court indicated renewed judicial interest in the problem. To date, however, the federal courts have not succeeded in establishing a uniform and workable guide by which the validity of state action may be judged in the absence of definitive federal policy. This deficiency has posed difficulties for state legislatures in arriving at law-making decisions and for the courts in testing …

Recent Treaties And Statutes, Donald C. Van Pelt, Jr., George H. Carnall Ii

Vanderbilt Journal of Transnational Law

The Single Convention on Narcotic Drugs, 1961, constituted a major step toward international acceptance of responsibility for the control of licit and illicit drug traffic. The Single Convention achieved a unified codification4 of existing multilateral treaties in the field' and created the International Narcotics Control Board (INCB), center of illicit traffic...In an effort to carry out the principle of limiting the use of narcotic drugs to medical and scientific purposes, the Narcotics Convention of 1931 required noncontracting parties as well as parties to the Convention to furnish annual advance estimates of narcotics needed for these purposes. These estimates were examined …

The Bremen And The Model Choice Of Forum Act, Robert A. Leflar

Vanderbilt Journal of Transnational Law

The Model Choice of Forum Act, promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in 1968, was designed to set standards for the effectuation of contractual forum-selecting clauses, sometimes called "derogation" or "prorogation" clauses, while restricting their effectiveness to situations in which their operation would be fair to all concerned parties. The Commissioners chose not to draft the statute as a Uniform Act to be recommended for adoption by all the states, but rather as a Model Act setting out sound standards that might be followed not only by states drafting their own statutes on the …

The Three Faces Of Zapata: Maritime Law, Federal Common Law, Federal Courts Law, Harold G. Maier

Vanderbilt Journal of Transnational Law

In The Bremen v. Zapata Off-Shore Co., the Supreme Court upheld the selection of a London forum in a towage contract between a German firm and an American firm and dismissed a suit brought in a Florida federal district court whose jurisdiction was otherwise valid. In doing so, the Court stated the rule: "[Forum-selection clauses] are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be 'unreasonable' under the circumstances." The Court qualified the rule by indicating that to be enforceable such clauses must be actually bargained for and agreed to by the …