Law Commons^™

No Excuse: The Failure Of The Icc’S Article 31 “Duress” Definition, Benjamin J. Risacher

Notre Dame Law Review

This Note proceeds in four Parts. Part I traces the historical development of “duress” through the common and civil law systems, World War II cases, the Model Penal Code (MPC) and, finally, through an in-depth analysis of the Erdemovic case before the ICTY Appeals Chamber discussed in the introduction. Part II then discusses “duress” under Article 31 of the Rome Statute and includes a survey of the Article’s drafting history, a statutory analysis of Article 31, and an application of the ICC definition of “duress” to the Erdemovic set of facts. This Part highlights the unjust result that inevitably occurs …

Latin American Constitutionalism: Social Rights And The “Engine Room” Of The Constitution, Roberto Gargarella

Notre Dame Journal of International & Comparative Law

Roberto Gargarella surveys the landscape of Latin American Constitutionalism from 1810 to 2010, with particular emphasis on efforts in the late twentieth and early twenty-first centuries to enhance protections of multiculturalism and human rights. Gargarella begins by surveying the "founding period" of Latin American constitutionalism, a period marked by compromise between liberals and conservatives. He proceeds to discuss the increasing incorporation of social rights—primarily economic and labor rights—during the early twentieth century. Gargarella then discusses a final wave of reforms, which introduced increasing human rights protections in the latter half of the twentieth century and the beginning of the twenty-first. …

Multiculturalism And Constitutionalism In Latin America, José Antonio Aguilar Rivera

Notre Dame Journal of International & Comparative Law

José Antonio Aguilar Rivera discusses recent reforms to the constitutions of several Latin American states. According to Aguilar Rivera, these reforms tend to recognize and protect the multiethnic and multicultural nature of Latin American socieites. While acknowledging that some have lauded these changes as progressive moves towards a more developed form of democracy, Aguilar Rivera reaches the opposite conclusion. He argues that these trends in Latin American constitutionalism represent an "authoritarian regression" rather than an enhancement of democracy. Aguilar Rivera begins by discussing and critiquing prevalent Western theories of multiculturalism, particularly the versions set forth by Canadian theorists Charles Taylor, …

Suing Americans For Human Rights Torts Overseas: The Supreme Court Leaves The Door Open, Douglass Cassell

Journal Articles

If American citizens or corporations commit gross violations of human rights against foreign victims on foreign shores, can the victims sue the Americans for damages in United States federal courts? Until recently the answer was clearly yes. However, following the diverse opinions in the Supreme Court’s 2013 ruling in Kiobel v. Royal Dutch Petroleum Co., the question has divided lower courts to date.

This Article argues that, as a matter of both domestic and international law, and under both the majority and minority rationales in Kiobel, federal courts can and should hear tort suits against American nationals for human rights …

Letter From The Conference Organizer, Pier Pigozzi

Notre Dame Journal of International & Comparative Law

Pier Pigozzi writes to introduce the Spring 2013 conference, "New Trends in Latin American Constitutionalism."

New Trends In Latin American Constitutionalism: An Overview, Santiago Legarre

Notre Dame Journal of International & Comparative Law

In this introduction to the issue on New Trends in Latin American Constitutionalism, Santiago Legarre offers his remarks at the opening of the conference on New Trends in Latin American Constitutionalism held at Notre Dame Law School in 2013. After briefly recounting the origins of the conference, Legarre summarizes some of the key modern challenges in Latin America and the role of constitutionalism in addressing these challenges. Legarre pays particular attention to the rapid growth of income inequality in the region. He ultimately concludes that some of the major challenges to the region are rooted in a lack of consensus …

The Future Of Human Rights Litigation After Kiobel, Roger P. Alford

Journal Articles

This Article begins from the premise that the Alien Tort Statute (ATS) no longer serves a useful purpose in litigating human rights claims. As others have argued in this issue, that premise may not be correct. Assuming it is, however, one should anticipate that human rights lawyers will pursue alternative avenues for relief.