Law Commons^™

Statecraft, Trade And The Order Of States, Dennis M. Patterson

ExpressO

No abstract provided.

A Case Against Judicial Internationalism, Ernesto J. Sanchez

ExpressO

The United States Supreme Court has increasingly referred to specific foreign legal authorities and practices, as well as international conventions, in decisions involving purely domestic concerns. While the Court, to date, has only given such materials persuasive, and not binding, effect in such instances, a number of legislators and commentators in both the media and the legal academy have expressed concern over foreign and international law's increasing role in constitutional jurisprudence.

This article critiques what it defines as the Court's increasing internationalism - the use of foreign law and international conventions as persuasive authority in cases with little or no …

Modernization Of European Antitrust Enforcement: The Economics Of Regulatory Competition, Ben Depoorter, Francesco Parisi

George Mason University School of Law Working Papers Series

In this article we analyze the expected effects of regulatory overlap in European competition law resulting from Regulation 1/2003. Drawing upon recently developed economic theories of regulatory competition, our model foresees a number of qualitative adjustments resulting from this reform. On one hand, the direct applicability of the exemption provision should increase the overall amount of exemptions. On the other hand, a decentralized system permits private litigants' forum shopping, and parallel enforcement by multiple national competition authorities will drive up the number of infringement findings. Although the precise direction of substantive competition law is unclear, the overall effect is higher …

The New Deterrence: Crime And Policy In The Age Of Globalization, Patrick Keenan

ExpressO

Globalization has made it much easier for criminal activity to cross borders, but deterrence theory has not kept up with this changed reality. I draw insights from both law-and-economics and criminology literature to enrich our understanding of deterrence. I ground my theoretical discussion in the real-world problem of sex tourism as an example of the kind of unwanted activity that now crosses borders and has complicated our understanding of deterrence. I focus on two issues central to deterrence that have not gotten sufficient scholarly attention: the phenomenon of displacement and the role of status. I argue that informal sanctions, as …

Treaty Solutions From The Land Down Under: Reconciling American Federalism And International Law, Cyril R. Emery

ExpressO

No abstract provided.

Tax Havens And Public International Law: The Case Of The Netherlands Antilles, Georges A. Cavalier

ExpressO

This paper identifies changes to tax havens’ legislation as a result of pressure from rich countries exercised through the OECD. It focuses on the specific situation of the Netherlands Antilles. The paper analyzes the response given by the Netherlands Antilles to the international community through the modification of its tax agreement with the mother country in Europe, and considers whether this is a solution for adoption by other tax havens. The paper then argues that such a model is not appropriate for use in a small economy which cannot rely on a supportive mother country nor on tourism as an …

Compliance Theory And The Inter-American Court Of Human Rights, Morse Tan

ExpressO

Abstract This essay fills a gap by exploring compliance theory in international law to the Inter-American Court of Human Rights. After introducing the topic and setting the context, it delves into the question of why nations follow international law. Interacting with prominent theoretical models (including the managerial model, fairness and legitimacy, transnational legal process, self-interest, and a comparative perspective with Europe), it arrives at a critical synthesis in the conclusion.

Are Public Sector Assets By Nature Insuitable For Financing Transnational Investments? , Lucien A. Rapp

ExpressO

Does the legal regime applicable to publicly owned assets constitute a policy instrument to protect public investment? In what way can this benefit public sector property ? Are the structures of the regime sufficiently well established to provide investors with enough certainty?

This paper aims to answer these questions by taking a trans-national perspective. The main concern is to resolve the problems of ownership or non-ownership of public sector assets in the context of financing trans-national investments.

This paper responds to this issue by examining (in two stages) the various consequences for trans-national investment; the first regarding the acquisition of …

The Expansion Of Intellectual Property Rights By International Agreement: A Case Study Comparing Chile And Australia’S Bilateral Fta Negotiations With The U.S., Ralph G. Fischer

ExpressO

This paper attempts to address the ongoing debate regarding the expansion of intellectual property rights (IPRs) through international negotiations. Commentators have described three theories that purport to explain the growing scope of IPRs in international law, as reflected in international agreements: that these agreements reflect coercion by economically powerful nations; that they are the products of lobbying by multinational corporations; and that they represent autonomous, welfare-enhancing instruments that benefit all parties. The article tests these theories by using a case study comparing free trade agreement negotiations that the United States recently concluded with a less developed country, Chile, and with …

The North Korean Nuclear Crisis: Past Failures And Present Solutions, Morse Tan

ExpressO

North Korea has recently announced that it has developed nuclear weapons and has pulled out of the six-party talks. These events do not emerge out of a vacuum, and this article lends perspective based on an interdisciplinary lens that seeks to grapple with the complexities and provide constructive approaches based on this well-researched understanding. This article analyzes political, military, historical, legal and other angles of this international crisis.

Past dealings with North Korea have been unfruitful because other nations do not recognize the ties between North Korean acts and its ideology and objectives. For a satisfactory resolution to the current …

Compliance Theory And The Inter-American Court Of Human Rights, Morse Tan

ExpressO

This essay fills a gap by exploring compliance theory in international law in relation to the Inter-American Court of Human Rights. After introducing the topic and setting the context, it delves into the question of why nations follow international law. Interacting with prominent theoretical models (including the managerial model, fairness and legitimacy, transnational legal process, self-interest, and a comparative perspective with Europe), it arrives at a critical synthesis in the conclusion.

The Jurisprudential Foundation Of Law, Especially International Law: The Basis For True Progress & Reform, Morse Tan

ExpressO

This essay makes a unique case for the existence of justice, higher law and virtue by drawing on classic thinkers from both East and West. It asserts that no better jurisprudential foundation can be found. The need for this foundation emerges more clearly in the international context, but it applies to all legal systems.

After introducing the topic, explaining the relevance of this jurisprudence, responding to objections, and critiquing competing approaches, this essay presents pertinent sources from the East. Well-regarded in the East but less known to the West, writers such as Mencius, Tao, Hsuntze, and the Neo Confucianists from …

Water Justice In South Africa: Natural Resources Policy At The Intersection Of Human Rights, Economics, & Political Power, Rose Francis

ExpressO

This paper analyzes water as a social justice issue in South Africa, a nation that has undergone tremendous political and legal transformations over the last fifteen years, but whose population nonetheless continues to suffer from severe inequities in access to freshwater resources. In light of growing water scarcity worldwide, this paper highlights that legal treatment of water resources has significant socioeconomic and distributive justice impacts, even in progressive constitutional democracies that have embraced principles of human rights and international legal norms. The paper explores historical changes in South African water law and evaluates the current political and legal status of …

Jury Trials In Japan, Robert M. Bloom

ExpressO

The Japanese are seeking to involve their citizens in the judicial system. They are also establishing a check on the power of the judiciary. Towards these goals, they have enacted legislation to create jury trials. These remarkable ambitions envision adopting a mixed-jury system, slated to take effect in 2009. In this mixed-jury system, judges and citizens participate together in the jury deliberation.

This article first explores the differences between mixed-juries and the American jury system. It then suggests why the Japanese opted for a mixed-jury system. The article explores psychological theories surrounding collective judgment and how dominant individuals influence group …

Finding A Happy Ending For Foreign Investors: The Enforcement Of Arbitration Awards In The People's Republic Of China, Ellen S. Reinstein

ExpressO

The Chinese judicial system has long been criticized for its rampant local protectionism and corruption and its lack of protections for foreign parties. To avoid litigation in China, most foreign investors insist on arbitration clauses in their contract. But even if they win the arbitration, foreigners must return to the Chinese courts to enforce the arbitration awards. Western lawyers, scholars and business people have repeatedly criticized the Chinese courts for their unwillingness to enforce arbitration awards in favor of foreign investors in favor of Chinese parties.

Over the last ten years, the Chinese Supreme People’s Court has attempted to address …

Communication Breakdown?: The Future Of Global Connectivity After The Privatization Of Intelsat, Kenneth D. Katkin

ExpressO

In 1971, 85 nations (including the United States) formed the International Telecommunications Satellite Organization “INTELSAT,” a public intergovernmental treaty organization. INTELSAT was charged with operating the world’s first global telecommunications satellite system, in order to guarantee the interconnectedness of the world’s communications systems and the availability of international telecommunications service to every nation on earth. By the late 1980s, however, INTELSAT’s operations began to experience substantial competition from the private sector. In 2000, the proliferation of privately-owned telecommunications satellites and transoceanic fiber optic cables led the U.S. Congress to mandate the privatization of INTELSAT. That privatization process began in 2001, …

Compliance Theory And The Inter-American Court Of Human Rights, Morse Hyun-Myung Tan

ExpressO

This essay fills a gap by exploring compliance theory in international law to the Inter-American Court of Human Rights. After introducing the topic and setting the context, it delves into the question of why nations follow international law. Interacting with prominent theoretical models (including the managerial model, fairness and legitimacy, transnational legal process, self-interest, and a comparative perspective with Europe), it arrives at a critical synthesis in the conclusion.

Neo-Colonial Relationships Gone Wrong: French Leaders Should Be Held Legally Responsible For Their Role In The Rwandan Genocide, Kirsten T. Bowman

ExpressO

This article explores the role of outside government intervention in civil war conflicts and the ability of these government actors to be held responsible for crimes committed by association and assistance to war criminals. By using the example of the French/Rwandan relationship and the criminal responsibility that France may have for its association and assistance to the Hutu majority government, it looks to the pitfalls that many western countries could find themselves in by assuming similar roles with other repressive and unstable regimes. This analysis proves particularly timely as lawyers for six Rwandan citizens recently filed a lawsuit with the …

The Case For The Legislative Override, Nicholas Stephanopoulos

ExpressO

What is the optimal arrangement of judicial review? Most scholars who have addressed this question have assumed that there are only two important alternatives: judicial supremacy and parliamentary sovereignty. The literature has neglected the conceptual space that exists between these two poles, in particular the innovative legislative override model. This Article describes and evaluates the experiences of the two countries that have adopted the override, Canada and Israel. It also introduces a refined override model that promises to protect fundamental rights while promoting democratic decision-making. Finally, the Article explains which institutional and political contexts are hospitable to the override and …

The Jurisprudential Foundation Of Law, Especially International Law: The Basis For True Progress & Reform, Morse Hyun-Myung Tan

ExpressO

This essay makes a unique case for the existence of justice, higher law and virtue by drawing on classic thinkers from both East and West. It asserts that no better jurisprudential foundation can be found. The need for this foundation emerges more clearly in the international context, but it applies to all legal systems.

After introducing the topic, explaining the relevance of this jurisprudence, responding to objections, and critiquing competing approaches, this essay presents pertinent sources from the East. Well-regarded in the East but less known to the West, writers such as Mencius, Tao, Hsuntze, and the Neo Confucianists from …

A Positive Theory Of The War Powers Constitution, Jide O. Nzelibe

ExpressO

This Article explores the division of war-making authority between the President and Congress through the prism of positive political theory. For the most part, the scholarly treatment of the war-powers debate has been normative with various commentators offering various textual or functional accounts of what the proper allocation of war-making authority should be. This Article provides a positive account of the war-making powers by focusing on the domestic political constraints that the political branches face in the context of an imminent international crisis. This Article argues that the presidential decision to seek congressional authorization is determined by a two-level strategic …

Awakening An Empire Of Liberty: Exploring The Roots Of Socratic Inquiry And Political Nihilism In American Democracy, Maurice R. Dyson

ExpressO

This book review timely examines Cornel West’s latest sequel to his 1992 best seller, Race Matters. In Democracy Matters, West unflinchingly examines the waning of democratic energies and nihilistic practices of private and public sector in our present age of democracy. This review takes a critical examination of the logic underpinning West’s arguments, his nomenclature of various nihilism plaguing our society, the sometimes clumsy employment of literary devices and his thesis regarding the ‘niggerization’ of America after 9/11 that can serve as a basis for unifying collective action against imperialism. West makes a compelling argument that the public needs to …

Western Institution Building: The War, Hayek’S Cosmos And The Wto, M. Ulric Killion

ExpressO

Despite the shortcomings of Hayek’s spontaneous order, there is a positive side, perhaps even a positive feedback. Hayek left us with a “what if” question and returns us to that initial opening of Pandora’s Box, or perhaps the initial onset of neo-realism, neo-liberalism, developmentalism, globalism, transnationalism and other concepts, precepts and adjectives justifying institution building by bargaining and military force. In terms of new world order, institution building by necessity requires fundamental changes in governmental structures in non-western cultures and nation-states such as China, Afghanistan and Iraq. Such changes are being prompted by means of political, economic and military powers …

World Trade Organization’S Identity Crisis: Institutional Legitimacy And Growth Potential In The Developing World, Jason Wiener

ExpressO

No abstract provided.

Establishing A Global Quarantine Against Weapons Of Mass Destruction, Derek D. Smith

ExpressO

The proliferation of weapons of mass destruction (WMD) is on the brink of developing into an epidemic, with the potential to spread to over a dozen nuclear-capable states. This article concludes that given the limitations of traditional arms controls frameworks, a global prohibition against WMD transfer may be the last viable line of defense. It discusses why this strategy is justified under the doctrine of self-defense, as well as how it can be implemented to create both a normative foundation and an appropriate institutional framework.