Law Commons^™

The Dissolution Of The Matrimonial Property Regime And The Succession Rights Of The Surviving Spouse, Maria Álvarez Torné

Cornell Law Faculty Working Papers

These pages are addressed to examining the problems arising from the regulation of the dissolution of the matrimonial property regime on the death of one of the spouses in relation to the determination of the succession rights of the surviving spouse in Private International Law (from now on, PIL). I will specifically try to analyse the conciliation difficulties between what is stipulated in each relevant field after the death of one of the spouses. The surviving spouse’s situation often depends on the simultaneous effect of the matrimonial property regime and also of Succession Law. In fact, this study deals with …

What Do We Really Know About The American Choice-Of-Law Revolution?, Hillel Y. Levin

Scholarly Works

This Book Review reviews Symeon Symeonides's recent book, The American Choice-of-Law Revolution: Past, Present and Future. I conclude that the book is required reading in the field and that it pushes the law in the right direction in significant ways. However, I suggest that it falls short in its effort to tell the full story of the Revolution, for two reasons. First, the data set is limited to published opinions. Second, we cannot evaluate the Revolution simply by looking at judicial opinions. I argue that scholarship and practice in Conflicts must reengage with one another, and offer a framework for …

The Retrogressive Flaw Of Chapter 15 Of The Bankruptcy Code: A Lesson From Maritime Law, John J. Chung

Law Faculty Scholarship

No abstract provided.

Anti-Federalist Procedure, A. Benjamin Spencer

Faculty Publications

"[T]he new federal government will ... be disinclined to invade the rights of the individual States, or the prerogatives of their governments."

"[T]he Constitution of the United States ... recognizes and preserves the autonomy and independence of the States-independence in their legislative and independence in their judicial departments. . . . Any interference with either, except as [constitutionally] permitted, is an invasion of the authority of the State and, to that extent, a denial of its independence."

The understanding expressed by these opening quotes-that the national government was designed to be one of limited powers that would refrain from encroaching …

Parallel Courts In Post-Conflict Kosovo, Elena Baylis

Articles

Even as American attention is focused on Iraq's struggle to rebuild its political and legal systems in the face of violent sectarian divisions, another fractured society - Kosovo - has begun negotiations to resolve the question of its political independence. Kosovo's efforts to establish multi-ethnic rule of law in the context of persistent ethnic divisions offer lessons in transitional justice and in managing legal pluralism for Iraq and other states.

In Kosovo today, two parallel judicial systems each claim sole jurisdiction over the province. One system was established by the United Nations administration in Kosovo, while the other system is …

The Unseen Track Of Erie Railroad: Why History And Jurisprudence Suggest A More Straightforward Form Of Erie Analysis, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

This Article proceeds in four parts. Part I discusses federal law as a new category of law after ratification of the Constitution and what that connotes for the time before federal law existed. Part II examines the shift from the natural law perspective, which had dominated jurisprudence into the late nineteenth century, to legal positivism. It was that change more than anything else that doomed the doctrine of Swift v. Tyson, which controlled vertical choice-of-law questions in the federal courts for ninety-six years until the Erie Court declared it unconstitutional. Part III canvasses the development of the Erie doctrine in …

Due Process Rights And Terrorist Emergencies, James W. Nickel

Articles

This essay discusses the grounds for due process rights (DPRs) and the permissibility of suspending them during terrorist and other emergencies. The two topics are profitably treated together because DPRs - along with freedoms of movement, expression, and political participation - are often suspended or restricted when national emergencies occur. Although I present a strong case for DPRs as human rights, this justification does not settle their priority during emergency situations. That issue raises additional questions, and I discuss some of them. The overall thrust of the essay is to defend the importance of respecting DPRs during troubled times. The …

Truth, Deterrence, And The Impeachment Exception , James L. Kainen

Faculty Scholarship

James v. Illinois permits illegally-obtained evidence to impeach defendants, but not defense witnesses. Thus far, all courts have construed James to allow impeachment of defendants' hearsay declarations. This article argues against allowing illegally-obtained evidence to impeach defendants' hearsay declarations because doing so unduly diminishes the exclusionary rule's deterrent effect. The distinction between impeaching defendants and defense witnesses disappears when courts allow prosecutors to impeach defendants' hearsay declarations. Because defense witnesses report exculpatory conduct of a defendant who always has a substantial interest in disguising his criminality, their testimony routinely incorporates defendant hearsay. Defense witness testimony thus routinely paves the way …

The Populist Safeguards Of Federalism, Robert A. Mikos

Vanderbilt Law School Faculty Publications

Extant legal scholarship often portrays citizens as the catalysts of federalization. Scholars say that citizens pressure Congress to impose their morals on people living in other states, to trump home-state laws with which they disagree, or to shift the costs of regulatory programs onto out-of-state taxpayers, all to the demise of states' rights. Since Congress (usually) gives citizens what they want, scholars insist the courts must step in to protect states from federal encroachments. By contrast, this Article proposes a new theory of the populist safeguards of federalism. It develops two distinct but mutually reinforcing reasons why populist demands on …

The Myth (And Realities) Of Forum Shopping In Transnational Insolvency, John A. E. Pottow

Articles

A decade ago, in 1996, the landscape of transnational insolvencies was vastly different from today. The UNCITRAL Model Law had not been finished, the efforts at the E.U. Insolvency Treaty were jeopardized by mad cows, and no one had heard of Chapter 15. Now, all three universalist projects are up and running, putting universalism in a comfortable state of ascendancy. The paradigm has not been without critics, however, the most persistent and eloquent of which has been Professor Lynn LoPucki. LoPucki has periodically attacked universalism on a number of grounds. These grievances include a sovereigntist complaint of universalism's insensitivity to …