Law Commons^™

Light From The Trees: The Story Of Minors Oposa And The Russian Forest Cases , Oliver Austin Houck

ExpressO

This article describes two lawsuits in the late twentieth century that changed their countries in ways from which there will be no return. One took place in the Philippines, emerging from the reign of Fernando Marcos, and the other in Russia, following a near century of communist rule. They have two things in common. They declared the rights of their citizens to challenge, and reverse, government decisions. And they were about the environment, more particularly, trees. What we learn is that notions of environmental protection, citizen enforcement and judicial review have traveled the world and that, in differing legal systems, …

Reconceptualising Legal Education After War, Christopher P. Waters

ExpressO

This paper considers the impact of war on legal education and assesses the contributions of legal education to post-conflict reconstruction and reconciliation.

The Social Obligation Of Property Ownership: A Comparison Of German And U.S. Law, Rebecca Lubens

ExpressO

Although both Germany and the United States have strong market-based economies characterized by rigorous protection of private property rights, the two countries have different conceptions of land ownership based on distinct notions of the individual’s place in society. Whereas property protection under the U.S. Constitution emphasizes individual freedom, German law explicitly considers the individual’s place in and relationship to the social order in defining ownership rights. The property clause in the German Grundgesetz (The Basic Law, the German constitution) contains an affirmative social obligation alongside its positive guarantee of ownership rights. The U.S. Constitution, on the other hand, does not …

Data Privacy, Data Piracy: Can India Provide Adequate Protection For Electronically Transferred Data?, Vinita Bali

ExpressO

As the wave of outsourcing to India swells, there is growing concern about the inadequacies of the India legal system in protecting data being transferred to it from other nations for the purpose of processing. India has a smattering of laws that scantily address the issue of data privacy. Under pressure from the business processing industry in India, as well as from the European Union and other nations, it is but a matter of time before India adopts a slate of laws that address the issue of data protection. Once these laws are enacted, the main issue that remains is …

Individual Rights And Group Rights In The European Union's Approach To Minority Languages, Robert F. Weber

ExpressO

The European Union rights discourse is dominated by talk of individual, and not group, rights. Individual market actors have been the constitutive atoms of European Union law. Within this legal framework, the onus has been on the Member States to protect and contribute to minority language groups. This paper examines some of the ways Member States accommodate and recognize the minority language groups residing within Europe, and subsequently analyzes the compatibility of these measures with the EC Treaty in light of the European Court of Justice's (ECJ) willingness to invoke the Treaty in an increasing array of situations. Specifically, the …

The Eastern Lowland Gorilla: Saving The Victims Of Coltan, Amy Costanzo

ExpressO

This article addresses the demand for coltan and the effects of this demand on the Eastern Lowland Gorilla, a species of great ape residing largely in the Democratic Republic of the Congo, home to greatest coltan reserves in the world. The growing demand for coltan has had a devastating effect on this animal, which includes habitat destruction, gorillas being killed for bushmeat, and baby gorillas being orphaned or sold as pets.

It addresses the international agreements, including CITES and the Convention on Biological Diversity, that have already been passed in an effort to help save the Eastern Lowland Gorilla, among …

Standing For Extraterritoriality: Defining The Empagran Exception, Max Huffman

ExpressO

Efforts by private plaintiffs to enforce the U.S. antitrust laws extraterritorially have become an enormous industry. A reflection of the challenges facing federal courts in this global age, F. Hoffman-LaRoche Ltd. v. Empagran S.A. (Empagran) held the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA) precluded the assertion by U.S. courts of jurisdiction over claims by foreign plaintiffs alleging harm felt in wholly foreign commerce.

Empagran left an exception that undermines its general rule. Plaintiffs able sufficiently to show “the anticompetitive conduct’s domestic effects were linked to their foreign harm” are excepted from the preclusion. This is the “Empagran exception.” …

The Foreign Affairs Power: Does The Constitution Matter?, D. A. Jeremy Telman

ExpressO

Peter Irons’ WAR POWERS favors congressional initiative in questions of war and peace but makes a historical argument that our government has strayed from the constitutional design in the service of an imperialist foreign policy. John Yoo’s THE POWERS OF WAR AND PEACE seeks to overthrow the traditional perspective on war powers espoused by Irons in favor of executive initiative in war. Yoo also pursues a revisionist perspective on the treaty power, which favors executive initiative in treaty negotiation and interpretation but insists on congressional implementation so as to minimize the impact of international obligations on domestic law. This Essay …

Jumping On The Bandwagon: How Canadian Lawyers Can & Should Get Involved In The Emerging Trend To Implement Therapeutic Jurisprudence Practices In Canadian Courts, Brooke Bloom

ExpressO

No abstract provided.

The Transition From The Inquisitorial To The Accusatorial System Of Trial: Procedure: Why Some Latin American Lawyers Hesitate , Leonard L. Cavise

ExpressO

The article is born of my experience teaching American-style trial advocacy to over 15 groups of Latin American lawyers coming from countries in transition from the inquisitorial to the accusatorial model. The first part of the article reviews the principal differences in the two systems as it affects trial procedure. The article then reviews those aspects of accusatorial trial proceedings that caused the greatest degree of discomfort to the foreign lawyers. Finally, the article attempts to posit a few recommendations that should help not only to ease the transition process but also to anticipate the next level of procedural and …

Fumbling In The Dark: The Case For A Paradigm Shift In Analyzing China’S Capital Market Regulation, David P. Finn

ExpressO

No abstract provided.

Why Justice Scalia Should Be A Constitutional Comparativst . . . Sometimes, David C. Gray

ExpressO

The burgeoning literature on transjudicialism and constitutional comparativism generally reaffirms the familiar lines of contest between textualists and those more inclined to read the Constitution as a living document. As a consequence, it tends to be politicized, if not polemic. This essay begins to shift the debate toward a more rigorous focus on first principles. In particular, it argues that full faith to the basic commitments of originalism, as advanced in Justice Scalia’s writings, opinions, and speeches, requires domestic courts to consult contemporary foreign sources when interpreting universalist language found in the Constitution. While the essay does not propose a …

Is Ec Trade Policy Up To Par?: A Legal Analysis Over Time - Rome, Marrakesh, Amsterdam, Nice, And The Constitutional Treaty, Rafael Leal-Arcas

ExpressO

This article is an attempt to a thorough chronological analysis of the European Community’s (EC) existing law and policy in the field of international trade law since the beginning of the European Economic Community. It deals with the evolution of the EC’s common commercial policy competence through the years, starting with the European Coal and Steel Community (ECSC), moving on to the necessary changes brought by the World Trade Organization (WTO) Agreement, signed in Marrakesh in 1994, until the days of the European Union (EU) Constitutional Treaty, with a view to enabling the EC with a coherent trade policy in …

The Right To Self-Determination And Statehood: The Case Of Kosovo, Besfort Rrecaj

ExpressO

Introduction To explore self-determination is, in the words of Antonio Cassese”, a way of opening a veritable Pandora’s Box.” Indeed, the historical evolution of the concept reveals that it has been subjected to ambiguity, misconception and contradictory application. Over the years, it was redefined and re-applied on the basis of the interests of particular states. More recent events, namely the dissolution of the USSR and Yugoslavia, have given a new perspective to the meaning of self-determination. In this post Cold War era, greater attention is being paid to the enforcement of human rights and with it, a broader understanding of …

Calling The United States' Bluff: How Sovereign Immunity Undermines The United States' Claim To An Effective Domestic Human Rights System, Denise L. Gilman

ExpressO

This article challenges the claims made by the United States that the civil rights system in this country adequately protects human rights, making it unnecessary for the United States to take on additional international human rights commitments. Specifically, the article uses international human rights law and comparative law to analyze the broad sovereign immunity doctrines that protect government actors in the United States from suits for damages even where constitutional violations are in play.

Evaluating The Wto's Two Step Test For Environmental Measures Under Article Xx, Nita Ghei

ExpressO

There has been considerable dissatisfaction expressed by both free trade proponents and environment activists with respect to the WTO’s exercise of authority on the impact of environmental measures on international trade. The Article first sets out a analytical framework, based on public choice theory, which examines the incentives to implement measures to achieve environmental goals which function effectively as disguised barriers to trade. This is followed by a careful examination of the WTO’s jurisprudence in the area, which suggests that the WTO’s focus on the measure being implemented is correct. Furthermore, the two step test under Article XX, as conceived …

Redefining The Right To Be Let Alone: Privacy Rights And The Constitutionality Of Technical Surveillance Measures In Germany And The United States, Nicole E. Jacoby

ExpressO

U.S. and German courts alike long have struggled to find the proper balance between protecting the privacy rights of criminal suspects and granting law enforcement officials the adequate tools to fight crime. The highest courts in each country have produced different paradigms for determining where the public sphere ends and the private sphere begins. In a series of cases, the U.S. Supreme Court has inquired whether a criminal defendant had a reasonable expectation of privacy when the state conducted a warrantless search of the suspect’s person, premises, or belongings. Germany’s Federal Constitutional Court, in contrast, has asked whether an investigative …

American Military Justice And International Criminal Court Complementarity: The Case Of Ucmj Article 60, Allen J. Dickerson

ExpressO

Although the American military is effectively one of the most potent of international institutions, discussions of its regulation have been oddly domestic. The court-martial – the single most important institution for disciplining military forces, preventing atrocities and punishing offenders – has seen its jurisdiction and procedures hotly debated, but most often by those in uniform or individuals interested in domestic military policy. This paper aims to internationalize the discussion, recognizing that the discipline of American military forces is of major concern to both international law and U.S. foreign policy. By exploring the interaction between a major innovation in international law …

Thinking Outside The Border: Homeland Security And The Forward Deployment Of The U.S. Border, Gregory W. Bowman

ExpressO

Following the September 11, 2001, terrorist attacks, the U.S. government implemented a number of inbound cargo security programs it described as “pushing the border outward” or “expanding [the U.S.] perimeter of security.” Are these statements rhetorical flourish, or do these programs materially affect international cargo trade? This article argues that far from being mundane or rhetorical, these cargo security programs are transforming how U.S. borders operate from both a conceptual and practical perspective. Specifically, by moving certain aspects of border functionality to locations well-removed from the physical U.S. border, these programs make U.S. regulation of inbound trade significantly more extraterritorial. …

Beberapa Aspek Kenisbian Dan Kesamaran Perjanjian Internasional, Ko Swan Sik

Indonesian Journal of International Law

The article does not purport to analyse an international law problem relating to a speific international agreement, nor does it pretend to develop any theoritical paradigm. It merely puts on stage the apparently clear and simple notion of international agreement while at the same time confronting the reader with its essenially relative nature by signalling the many ambiguities and ambivalences hidden behind the term. The author’s sole intention is to invite the reader’s attention to this feature of relativity so as to prevent him from taking the concept of international agreement too easily for granted. The following aspects relating to …

Federalism And Private International Law: Implementing The Hague Choice Of Court Convention In The United States, Stephen B. Burbank

All Faculty Scholarship

Federalism is important in the United States. It is also important that the United States be able to participate effectively in a global economy and that those charged with the conduct of the country's foreign affairs be able to make, and that the country abide by, international agreements that are designed to facilitate transnational commercial activity. The Hague Choice of Court Convention is one such agreement, the modest fruits of more than a decade of work in an international lawmaking effort that was initiated by the United States. However modest the fruits of the enterprise, the rest of the world …

The Equivalence Approach To Securities Regulation, Tzung-Bor Wei

ExpressO

Abstract

In the past, academics and regulators debated two competing approaches to international securities regulation, namely “harmonization” and “regulatory competition.” More recently, a third approach to securities regulation has emerged – the “equivalence” approach. Under this model, a host country exempts foreign firms from certain host country rules when the firms’ home country rules are sufficiently similar, or “equivalent.” Many regulators have come to embrace equivalence, which is rapidly becoming a key principle in international finance.

This paper studies the concept of equivalence. It begins by defining “equivalence,” highlighting that different regulators manipulate the term to give it contrasting meanings. …

Can The Un Secretary-General Say "No": Revisiting The "Peking Formula", Jorge E. Vinuales

ExpressO

The study explores the extent to which the U.N. Secretary-General can uphold his or her own views when confronted with adverse stances from powerful States. More specifically, it analyzes a particular modus operandi originally developed by Dag Hammarskjold, known as the “Peking formula”. This form of good offices is discussed in two contexts, namely the 1954-1955 Sino-American hostage crisis when it was first used and the more recent attempts of Javier Perez de Cuéllar and Kofi Annan at solving the subsequent Iraq crises. Drawing upon these two case-studies, the author offers a theoretical account of the complex interactions between law …

The Politics Of Memory/Errinerungspolitik And The Use And Propriety Of Law In The Process Of Memory Construction, Vivian Grosswald Curran

ExpressO

The post-Second World War trial for the crime against humanity from the start assumed pedagogical proportions, with the tribunals involved conscious that their legal verdicts would represent historical pronouncement and national values. The newly defined crime has been asked to institutionalize far more than the traditional task of adjudicating the guilt or innocence of the defendant. The trials themselves are meant to define the past, create and crystallize national memory, and illuminate the foundations of the future. I suggest that, by placing a burden on law that it is not designed to bear,we risk deforming law and legal principle. We …

How The Other Half Lives (Revisited): Twenty Years Since Midler V. Ford - A Global Perspective On The Right Of Publicity, Alain Lapter

ExpressO

For celebrities, name and image are, arguably, two of their most valuable assets. From headlining a movie, to starring in a commercial, to endorsing a product, a celebrity’s persona is potentially worth thousands to millions of dollars. However, this intangible commodity’s worth is often siphoned off by those who appropriate a celebrity’s name or image without authorization or remuneration, thus potentially decreasing the property’s value. In order to stifle this unjust enrichment, celebrities greatly desire the absolute right to control the commercial exploitation of their name and likeness.

In this article, I examine the current state of the right of …

Peace Is Not The Absence Of Conflict: A Response To Professor Rogers' Article: "Fit And Function In Legal Ethics", Kirsten D. Weisenberger

ExpressO

This paper takes the theoretical model Professor Catherine Rogers developed in her article “Fit and Function in Legal Ethics: Developing a Code of Conduct for International Arbitration,” 23 MICH. J. INT’L L. 341 (2002) as the starting point for an original argument that conflicts of laws analysis should be used to determine which legal ethics rules should apply to lawyers practicing international arbitration. The argument is supported by the new ABA Model Rules of Professional Conduct rule on choice of law explicitly applies conflicts of laws analysis to lawyers practicing in the multijurisdictional settings. This paper analyses the new ABA …

Damages In Lieu Of Performance Because Of Breach Of Contract, John Y. Gotanda

Working Paper Series

In contract disputes between transnational contracting parties, damages are often awarded to compensate a claimant for loss, injury or detriment resulting from a respondent’s failure to perform the agreement. In fact, damages may be the principal means of substituting for performance or they may complement other remedies, such as recision or specific performance.

Damages for breach of contract typically serve to protect one of three interests of a claimant: (1) performance interest (also known as expectation interest); (2) reliance interest; or (3) restitution interest. The primary goal of damages in most jurisdictions is to fulfil a claimant’s performance interest by …

“Thinking Globally, Acting Locally”: Recent Trends In The Recognition And Enforcement Of Foreign Judgments In Canada, Antonin I. Pribetic

ExpressO

The continuing evolution of the “real and substantial connection” test for the recognition and enforcement of foreign judgments remains a topic of immediate interest. Since the landmark decision in Morguard Investments Ltd. v. De Savoye, and more recently in Beals v. Saldanha, Canadian jurisprudence for the recognition and enforcement of foreign judgments has been dominated by judicial and legislative unilateralism: the establishment of a domestically imposed standard (the lex fori) striving towards national uniformity informed by private international law (or conflict of laws) principles. While the “real and substantial connection” test for jurisdiction simpliciter provides a flexible analytical framework for …

The Case Of The Extradition Of Luis Posada Carriles: Is The United States Harboring A Terrorist?, Ernesto Gonzalez

ExpressO

"The Case of the Extradition of Luis Posada Carriles: Is the United States Harboring a Terrorist?", is the product of an independent research and writing exercise that I undertook to satisfy a writing requirement as editor of the American University International Law Review. The comment analyses the international obligations of the United States in the face of Venezuela’s request for the extradition of Luis Posada Carriles, a Cuban-born anti-Castro militant accused by Venezuela of bombing a civil airplane in 1976. The comment argues that under the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal …

Tough Love: The Dramatic Birth And Looming Demise Of Unclos Property Law (And What Is To Be Done About It), Peter S. Prows

ExpressO

The 1982 United Nations Convention on the Law of the Sea (“UNCLOS”) represents the culmination of thousands of years of international relations, conflict, and now nearly universal adherence to an enduring order for ocean space that is the most significant achievement for international law since the UN Charter. UNCLOS establishes international property law erga omnes that, by legal and political necessity, required a bargained consensus to be effective. This bargain, in essence, provided coastal States with extended but limited jurisdictions, while ensuring that the seabed and its mineral resources beyond were the “common heritage of mankind” that would peaceably and …