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Full-Text Articles in Law
Judicial Review: Advice For The Deaf?, Laurence W. Gormley
Judicial Review: Advice For The Deaf?, Laurence W. Gormley
Fordham International Law Journal
This article examines the state of judicial protection in the European Community system largely against the background of the debate of recent years, and discusses critically the ostrich-like reaction of the Court to the chorus of criticism relating to its interpretation of the concept of “individual concern” in the fourth paragraph of Article 230 of the Treaty establishing the European Community (“EC Treaty”). It also examines the attempt in the Treaty establishing a Constitution for Europe to establish a different approach to admissibility in respect of some types of Community acts.
Exporting Despair: The Human Rights Implications Of U.S. Restrictions On Foreign Health Care Funding In Kenya, Mehlika Hoodbhoy, Martin S. Flaherty, Tracy E. Higgins
Exporting Despair: The Human Rights Implications Of U.S. Restrictions On Foreign Health Care Funding In Kenya, Mehlika Hoodbhoy, Martin S. Flaherty, Tracy E. Higgins
Fordham International Law Journal
This Report culminates a year-long project undertaken by the Joseph R. Crowley Program in International Human Rights to study the impact of the Mexico City Policy in Kenya and to analyze the applicable international human rights standards. This Report sets out the findings and legal analysis that resulted. Following this Introduction and a cataloguing of our recommendations, Part I examines those international human rights obligations that the Mexico City Policy most obviously implicates. In Part II, the Report turns to the impact of the Mexico City Policy upon these rights in Kenya. Part III of this Report turns to the …
"External" Versus "Internal" In International Law, Martin S. Flaherty
"External" Versus "Internal" In International Law, Martin S. Flaherty
Fordham International Law Journal
The issues and analyses in this issue of the Fordham International Law Journal provide excellent cases for testing how a conventional approach would mediate current external pressures for legal change on current international and foreign relations law commitments. As it turns out, the results suggest that sovereigntist concerns are overblown, but that internationalist advocates ignore them completely at their peril.
International Trade & Developing Countries, Steve Charnovitz
International Trade & Developing Countries, Steve Charnovitz
Fordham International Law Journal
This is an introduction to Fordham International Law Journal, Volume 29, Number 2. This book quite appropriately addresses the challenge of trade and developing countries.
Developing Countries At Crossroads: Aid, Public Participation, And The Regulation Of Trade In Genetically Modified Foods, J.M. Migai Akech
Developing Countries At Crossroads: Aid, Public Participation, And The Regulation Of Trade In Genetically Modified Foods, J.M. Migai Akech
Fordham International Law Journal
This Article reviews the experience of developing countries with the regulation of trade in GM food products in light of such bilateral pressures and argues that there is a need for broader public participation in the regulation of biotechnology as this will facilitate national governance in an era in which the international trade regime is rapidly eroding national regulatory decision-making autonomy. Furthermore, broadening public participation promises to rescue governments of developing countries from the aforementioned bilateral pressures by helping to strengthen their hands in negotiations for technical assistance and food aid. That is, developing country governments can use participatory regulatory …
Transnational Common Laws, H. Patrick Glenn
Transnational Common Laws, H. Patrick Glenn
Fordham International Law Journal
Today, the notion of transnational, or sometimes transsystemic, law has progressed well beyond Jessup's concept. It now includes the international law that Jessup generally dealt with – the (often) national law regulating actions or events that transcend national frontiers – but also now clearly extends to law that is transnational in origin, as opposed to application. The new transnational law can thus be applied to purely internal, and not only international, cases, and its transnational character is derived from the extra-national character of its source or sources. It is often seen in the form of “general principles of law,” which …
Tackling Exclusionary Practices To Avoid Exploitation Of Market Power: Some Preliminary Thoughts On The Policy Review Of Article 82, Neelie Kroes
Fordham International Law Journal
The subject of this speech is how to improve enforcement of Europe's ban on abuse of monopoly power. This ban is laid down in Article 82 of the Treaty Establishing the European Community (“EC Treaty”), our equivalent of Section 2 of the Sherman Act in the United States. Such enforcement is a crucially important element in ensuring an effective competition policy, which is in turn a key factor in increasing Europe's competitiveness.
Constitutional Lessons From Europe, George A. Bermann
Constitutional Lessons From Europe, George A. Bermann
Fordham International Law Journal
All legal transplants are problematic, constitutional transplants especially so. And constitutional transplants for federal systems are among the most problematic of all. Still, especially in light of the apparent derailing of the EU's Draft Constitutional Treaty, the question of the relevance of EU constitution-making for constitution-making in federal-style systems elsewhere seems nothing less than compelling. Two problematic themes emerge most forcefully from the EU constitutional adventure just witnessed. One is the utter importance of a sense of identity, and the other is the profound challenge of satisfactorily organizing the processes of democratic participation.
A Commentary On Selected Opinions Of Advocate General Jacobs, Rosa Greaves
A Commentary On Selected Opinions Of Advocate General Jacobs, Rosa Greaves
Fordham International Law Journal
This Article seeks simply to demonstrate, by reference to carefully selected opinions, Advocate General Jacobs' commitment to the establishment of the internal market (as illustrated by HAG II, Leclerc-Siplec, Alpine Investments, and Silhouette) and to the development of a Community legal order in which individual rights are fully protected at national and Community levels (in, for example, Konstantinidis, Vaneetveld, Unilever, and UPA).
Citizenship Of The Union, Governance, And Equality, Robin C.A. White
Citizenship Of The Union, Governance, And Equality, Robin C.A. White
Fordham International Law Journal
This Article focuses on the effects of introduction of citizenship of the European Union (or “Union”) into the Treaty establishing the European Community (the “EC Treaty”) by the Maastricht Treaty. It has been accompanied by an explosion of writing on its significance for the development of the European Union. Some of this writing is critical; some questions whether Union citizenship can be a “genuine” citizenship or is rather an ill-judged attempt to create a European identity where none exists. It is not the writers alone who have examined citizenship; lawyers and the courts have also done so. The Court of …
Private Enforcement Of Commission Commitment Decisions: A Steep Climb Not A Gentle Stroll, John Davies, Manish Das
Private Enforcement Of Commission Commitment Decisions: A Steep Climb Not A Gentle Stroll, John Davies, Manish Das
Fordham International Law Journal
This Article examines the validity of the Commission's position on the private enforceability of commitment decisions in national courts in the European Union in light of the current state of European law and other important procedural and practical considerations for third parties wishing to bring enforcement proceedings. As will become apparent, national courts faced with an application for private enforcement will have to grapple with a series of challenging legal issues concerning the nature of commitment decisions. The first of these questions will concern whether a commitment decision, which is a Community measure, will be capable of enforcement by application …
The Commission, The "Community Method," And The Smaller Member States, John Temple Lang, Eamonn Gallagher
The Commission, The "Community Method," And The Smaller Member States, John Temple Lang, Eamonn Gallagher
Fordham International Law Journal
This Article discusses several developments concerning the position of the Commission in the institutional structures of the European Union ("EU") that have occurred since then. It does not touch on the many other matters that influenced the debate on the draft Constitutional Treaty, leading to its failure at referendum in France and the Netherlands; these matters include the scope of the draft Treaty, questions concerning its economic, social, and political benefits or disadvantages, the working of the Stability Pact in the Eurozone and the ongoing debate on freedom of services legislation, the purposes for which the EU was originally created …
Standards Of Proof And Standards Of Judicial Review In European Commission Merger Law , Tony Reeves, Ninette Dodoo
Standards Of Proof And Standards Of Judicial Review In European Commission Merger Law , Tony Reeves, Ninette Dodoo
Fordham International Law Journal
This Article considers, in light of the judgment in Tetra Laval ECJ, what standard the Commission's decisions in the field of merger control must satisfy if they are to withstand judicial scrutiny, and whether the Commission's concerns that the standard has been raised are justified. We also consider how the Courts' review of Commission decisions has evolved, what the standard of such judicial review now is, and what margin of appreciation is left to the Commission. Along the way, some observations are made as to how the position could be clarified further so as to ensure a satisfactory competition law …
The Children Left Behind: Roma Access To Education In Contemporary Romania, Aram A. Schvey, Martin S. Flaherty, Tracy E. Higgins
The Children Left Behind: Roma Access To Education In Contemporary Romania, Aram A. Schvey, Martin S. Flaherty, Tracy E. Higgins
Fordham International Law Journal
This Report concludes a full-year project conducted by the Joseph R. Crowley Program in International Human Rights at the Fordham University School of Law. The 2004-2005 Crowley Fellow, Aram Schvey, taught a human-rights seminar on Roma Access to Education in Contemporary Romania. The course culminated in a two-week-long human-rights fact-finding mission to Romania that he organized. During the course of the mission, the students and faculty members traveled hundreds of miles across Romania and spoke to dozens of Roma and non-Roma students and parents, as well as teachers, principals, human rights advocates, government officials, and members of international organizations, such …
Exhaustion Of Local Remedies In Alien Tort Litigation: Implications For International Human Rights Protection, Emeka Duruigbo
Exhaustion Of Local Remedies In Alien Tort Litigation: Implications For International Human Rights Protection, Emeka Duruigbo
Fordham International Law Journal
This Article looks at the scope and application of the local remedies rule in international law and the implications of its introduction in ATS litigation. As has been the case in the rule's introduction to human rights proceedings in other settings, its application in ATS litigation could mean additional work for the courts in fashioning the right way to interpret and apply the rule. For victims of human rights abuse who are seeking justice in the United States, it may not herald a lot of changes, although it could still make their quest a little more difficult. However, it could …
Private International Law-Making For The Financial Markets, Caroline Bradley
Private International Law-Making For The Financial Markets, Caroline Bradley
Fordham International Law Journal
This Article argues that transnational financial transactions create new opportunities for private groups to influence legal and regulatory rules. Internationalization of the financial markets has led to harmonization of financial law. Much harmonization of financial law occurs through processes that are apparently public, state-centered, and transparent, but this Article describes three ways in which private and opaque processes have a significant influence on policy development in the area of financial law. These are private international law-making through private involvement in public rule-making processes, through contracting, and through the actions of private sector regulatory entrepreneurs.
Critical Analysis Of The International Court Of Justice Ruling On Israel's Security Barrier, Michael J. Kelly
Critical Analysis Of The International Court Of Justice Ruling On Israel's Security Barrier, Michael J. Kelly
Fordham International Law Journal
On July 9, 2004, the International Court of Justice (“ICJ”) handed down an Advisory Opinion concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. In producing the Opinion, the Court traversed issues concerning its jurisdiction to deal with the request, the applicable law, the adherence by Israel to that law, the right of self-defense and the consequences of its findings of unlawfulness. It is well known that the long running issue of Israeli and Palestinian reconciliation is a politically heated one and the work of the ICJ has not been immune from the effects …
The Limits Of American Generosity, Raj Bhala
The Limits Of American Generosity, Raj Bhala
Fordham International Law Journal
This Article discusses generosity and its relevance in international trade law. Generosity, then - in international trade law - does matter, at least if a better world for the poor is imagined and if their world view is acknowledged. With good reason, many individual Americans - from the Great Plains of Kansas to the five boroughs of New York City - regard themselves as generous people. They give as private citizens, and through their favorite non-governmental organizations ("NGOs"), especially their churches, mosques, synagogues, and other houses of worship. Yet, from overseas, America is not perceived as a generous nation - …
Leveling The Playing Field: Labor Provisions In Cafta, Marisa Anne Pagnattaro
Leveling The Playing Field: Labor Provisions In Cafta, Marisa Anne Pagnattaro
Fordham International Law Journal
Part I of this Article details labor problems in CAFTA countries, with specific emphasis on problems related to fundamental labor rights. Part II discusses the labor-related trading objectives mandated by the U.S. Congress in the TPA, including the relationship of those objectives to core international labor standards promulgated by the International Labor Organization ("ILO"). Part III then analyzes the labor provisions that are included in CAFTA. To the extent that these provisions do not fulfill the labor objectives set forth in the TPA and do not adequately promote core international labor standards, Part IV proposes provisions that the United States …
Sovereignty And The American Courts At The Cocktail Party Of International Law: The Dangers Of Domestic Judicial Invocations Of Foreign And International Law, Donald J. Kochan
Sovereignty And The American Courts At The Cocktail Party Of International Law: The Dangers Of Domestic Judicial Invocations Of Foreign And International Law, Donald J. Kochan
Fordham International Law Journal
Part I of this Article presents the background regarding the invocation of foreign and international law in federal courts. It discusses their use as precedential and supportive sources of authority and as the bases for legal liability. Part II discusses the fundamental infirmities and dangers related to the invocation of international and foreign law in U.S. jurisprudence. Further, this Part discusses the implications of such behavior on sovereignty, the rule of law, democratic values, constitutional adherence, foreign policy, and development. In conclusion, this Article finds that adherence or even reference to foreign and international authorities should be avoided if the …
Toward More Effective Judicial Implementation Of Treaty-Based Rights, John Quigley
Toward More Effective Judicial Implementation Of Treaty-Based Rights, John Quigley
Fordham International Law Journal
This Article argues that the approach to treaties taken early in the history of the Republic is more consistent with the intended meaning of the Supremacy Clause than the approach reflected in recent judicial practice.
Court Of Justice Oversight Over The European Central Bank: Delimiting The Ecb's Constitutional Autonomy And Independence In The Olaf Judgment, Roger J. Goebel
Court Of Justice Oversight Over The European Central Bank: Delimiting The Ecb's Constitutional Autonomy And Independence In The Olaf Judgment, Roger J. Goebel
Fordham International Law Journal
An article devoted to the European Court of Justice's (“ECJ” or the “Court”) judicial review of the European Central Bank's (“ECB”) level of constitutional autonomy and independence may seem a bit arcane in a book dedicated to honor Advocate General Francis Jacobs upon his retirement from the Court. The topic is, however, eminently suitable, because it highlights his influence in a case remote from the many fields of law in which his impact has been so marked-- e.g., free movement of goods, competition law, trademarks and other intellectual property rights, free movement of services and establishment rights, human rights protection, …
Advocate General Jacobs' Contribution To Competition Law, Valentine Korah
Advocate General Jacobs' Contribution To Competition Law, Valentine Korah
Fordham International Law Journal
This Article focuses on some of AG Jacobs' opinions regarding matters of competition, starting with his contributions on the meaning of “undertaking” in Höfner and AOK, under a combination of the Treaty Establishing the European Community (“EC Treaty”) Articles 82 and 86 (special and exclusive rights), and Risparmio, under Articles 86 and 87 (State aids). It does not deal with many other opinions he wrote on the meaning of “undertaking,” such as those in Albany and Pavlov. Finally, it discusses his opinions on refusals to deal in Bronner and Syfait, along with a selection of other judgments on the topic.
Harmonization Of Legislation On Migrating Eu Citizens And Third Country Nationals: Towards A Uniform Evaluation Framework?, Piet Jan Slot, Mielle Bulterman
Harmonization Of Legislation On Migrating Eu Citizens And Third Country Nationals: Towards A Uniform Evaluation Framework?, Piet Jan Slot, Mielle Bulterman
Fordham International Law Journal
This Article will deal with the rights of European Union (“EU”) citizens and third country nationals. It first gives a brief overview of the classical doctrine of harmonization of legislation. This is followed by an analysis of the harmonization issues for rights of EU citizens (Part II) and third country nationals (Part III). Subsequently, harmonization methods are discussed (Part IV). Finally, it will attempt to sketch a framework for analysis (Part V).
The Icj And Municipal Law: The Precedential Effect Of The Avena And Lagrand Decisions In U.S. Courts, Philip V. Tisne
The Icj And Municipal Law: The Precedential Effect Of The Avena And Lagrand Decisions In U.S. Courts, Philip V. Tisne
Fordham International Law Journal
This Note argues that neither the framers of the Optional Protocol (“the Framers”), nor the U.S. Senate that ratified it, intended to delegate to the ICJ the authority to interpret the Vienna Convention as a matter of U.S. law. Part I of this Note describes the role and function of international law in the U.S. domestic legal system. Part I then presents the structure and history of the Permanent Court of International Justice (“PCIJ”) and the ICJ (collectively, “the World Courts”). Part I also describes the history and relevant provisions of the Vienna Convention and the Optional Protocol. Part II …
Introduction: One Hundred Years Of International Law At Fordham University, William Michael Treanor
Introduction: One Hundred Years Of International Law At Fordham University, William Michael Treanor
Fordham International Law Journal
In the past 100 years, the connotations of the term "international" have changed dramatically. The ideas we have of concepts such as "international communication" and "global travel" are dramatically different from what those concepts would have meant to our forebears - if they had even thought in such terms. But an international perspective is not new at Fordham Law School. The idea of the interconnectedness of our social and legal systems with those of other Nations is one of the foundational values of our school, and it has shaped our history since we opened our doors 100 years ago.
From Stockholm To New York, Via Rio And Johannesburg: Has The Environment Lost Its Way On The Global Agenda?, Paolo Galizzi
From Stockholm To New York, Via Rio And Johannesburg: Has The Environment Lost Its Way On The Global Agenda?, Paolo Galizzi
Fordham International Law Journal
This Article will examine the response of the international community to the compelling evidence on the environmental crisis facing our Planet. It will analyze the place of the environment in the international agenda from the early 1970s, when an international environmental agenda emerged, to the 2005 World Summit, where Heads of State and Government gathered to renew their commitment to the international agenda for the twenty-first century agreed at the Millennium Summit. More specifically, the Article will examine the "comprehensive" international environmental agenda that has emerged within the U.N.
The Simplification Of International Data Privacy Rules, Joel R. Reidenberg
The Simplification Of International Data Privacy Rules, Joel R. Reidenberg
Fordham International Law Journal
This Essay suggests that simplification will actually complicate data protection and will lead to unexpected burdens on industry along with an increase in the data surveillance of citizens. Part I begins with an examination of the global push for simplification. Part II addresses the opportunities for simplification through multiple instruments and some of the experiences with these instruments. Part III presents the obstacles to simplification. These obstacles illustrate fundamental problems with simplification. Part IV concludes with a proposal on “simplifying” technologies that calls for the development and increased use of privacy rights management technologies and technology audits to facilitate international …
Wrong-Sizing International Justice? The Hybrid Tribunal In Sierra Leone, Chandra Lekha Sriram
Wrong-Sizing International Justice? The Hybrid Tribunal In Sierra Leone, Chandra Lekha Sriram
Fordham International Law Journal
Even as the International Criminal Court undertakes investigations in Uganda and the Democratic Republic of Congo, policymakers and academics continue to debate what the “right” tools to respond to past atrocities are. Naturally there are concerns that justice must be done, weighed against concerns that weak States will be destabilized by attempts at accountability. While many have celebrated the entry into force of the International Criminal Court Statute and the exercise of universal jurisdiction, the United States continues to challenge both of these tools of international justice as undemocratic and illegitimate. There are also reasons to be concerned that tools …
Economic Growth, Democracy, The Rule Of Law, And China's Future, Miron Mushkat, Roda Mushkat
Economic Growth, Democracy, The Rule Of Law, And China's Future, Miron Mushkat, Roda Mushkat
Fordham International Law Journal
China still relies predominantly on the “rule of man” (as distinct from the rule of law) and is by no means ready to embrace democracy. Its foreign policy stance has not been overly aggressive for some time but China may have not acted, at least consistently and unambiguously so, in a manner that reflects its size and status as a leading regional power. The rapid economic growth it has experienced--a pattern that should remain intact--might thus contribute toward internal relaxation and external moderation. Both the internal and external sides of the picture merit careful consideration. However, this Essay focuses, from …