Law Commons^™

From Origin To Delta: Changing Landscape Of Modern Constitutionalism, Jiunn-Rong Yeh, Wen-Chen Chang

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This article deals with the question of whether and to what extent the two forces of democratization and globalization have altered our understandings of constitutionalism. We attempt to theorize a changing landscape of constitutionalism that includes transitional and transnational perspectives and examine respectively their features, functions and characteristics. First, we analyze respective developments of transitional and transnational constitutionalism by identifying their features, perspectives, functions, and characteristics. Then we examine to what extent and in what ways the developments in transitional and transnational constitutionalism pose challenges to our traditional understanding of modern constitutional laws. Finally, we shall picture a new constitutional …

Toward An International Criminal Procedure: Due Process Aspirations And Limitations, Gregory S. Gordon

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The breathtaking growth of international criminal law over the past decade has resulted in the prosecution of Balkan and Rwandan mass murderers, the development of a substantial body of atrocity law jurisprudence and the creation of a permanent International Criminal Court with jurisdiction over genocide, crimes against humanity, and war crimes. The growth of international criminal procedure, unfortunately, has not kept pace. Among its shortcomings, critics have pointed to lengthy pre-trial detention without a real possibility of provisional release, the use of affidavits and transcripts instead of live witnesses at trial, the absence of juries, and the right of prosecutorial …

International Law Happens: Executive Power, American Exceptionalism, And Bottom-Up Lawmaking, Janet K. Levit

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This essay introduces “bottom-up transnational lawmaking” in the context of contemporary ideological and theoretical debates regarding the breadth and depth of executive power vis-à-vis international law. In an era of globalization, with a proliferation of transnational actors and regulatory instruments, the international lawmaking universe is disaggregating into multiple, sometimes overlapping, lawmaking communities. Neither the President nor others in the “political leadership” sits at the center of many of these communities. Thus, the nationalist critique of international law, rooted in an all-powerful executive who controls international law, creating it and using it instrumentally, in furtherance of the “national interest,” ignores a …

Global Copyright, Local Speech, Michael Dan Birnhack

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Copyright is no longer a matter of "promoting the progress of science" in the words of the U.S. Constitution. It is now more than ever before a matter of trade. Furthermore, under the WTO's TRIPS Agreement, we now have a global copyright (G©) regime.

The globalization of copyright law destabilized previous balances. The shift to a trade environment requires us to reevaluate the previous balance. The concern explored in this article is that the old foundations will collapse under the heavy weight of global forces. The concern is that local culture, access to information, research and free speech in general, …

Transparency In Global Merger Review: A Limited Role For The Wto?, Keith R. Fisher

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This article identifies certain problems faced by parties to transnational merger transactions in view of the global proliferation in recent years of competition (and, specifically, merger review) laws. After considering the pros and cons of merger remedies (both structural and behavioral) that may be offered to mitigate potentially anticompetitive effects and illustrating (through a case study of the GE/Honeywell transaction) the pitfalls of divergent market definition even as between two legal regimes employing substantially similar standards, the article reviews and critiques proposals for establishing a supranational competition authority under the aegis of the World Trade Organization. While rejecting the WTO …

Internationalizing U.S. Legal Education: A Report On The Education Of Transnational Lawyers, Carole Silver

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This article analyses the role of U.S. law schools in educating foreign lawyers and the increasingly competitive global market for graduate legal education. U.S. law schools have been at the forefront of this competition, but little has been reported about their graduate programs. This article presents original research on the programs and their students, drawn from interviews with directors of graduate programs at 35 U.S. law schools, information available on law school web sites about the programs, and interviews with graduates of U.S. graduate programs. Finally, the article considers the responses of U.S. law schools to new competition from foreign …

From International Law To Law And Globalization, Paul Schiff Berman

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International law’s traditional emphasis on state practice has long been questioned, as scholars have paid increasing attention to other important – though sometimes inchoate – processes of international norm development. Yet, the more recent focus on transnational law, governmental and non-governmental networks, and judicial influence and cooperation across borders, while a step in the right direction, still seems insufficient to describe the complexities of law in an era of globalization. Accordingly, it is becoming clear that “international law” is itself an overly constraining rubric and that we need an expanded framework, one that situates cross-border norm development at the intersection …

Globalization: Panacea For The World Or Conquistador Of International Law And Statehood?, Aaron J. Lodge

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Recent powerful occurrences have led to an unprecedented world wide move in the direction of globalization. Globalization involves eliminating trade barriers, exchanging products and services across national borders, and the emergence of truly global corporations. Governments have embraced globalization in hopes of building stronger economies, creating jobs, and providing increased services and products. Debate has centered on the effect of globalization on sovereignty and the effect on individuals. However, the effect of globalization on international law has been largely ignored.

Today, international law—in the form of free trade agreements—enables the globalization process to occur faster than ever before. This article …

International Poverty Law: A Response To Economic Globalization, Timothy K. Kuhner

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This paper is directed at poverty lawyers and, more generally, anyone with an interest in the relationship between poverty and globalization. In this paper, I argue that poverty law needs to expand its scope in order to encompass the international dimensions of poverty, and to thereby become responsive to the current nature of poverty. This need is evident, because wealth and poverty have been globalized, domestic issues have become international issues, and international issues have become domestic issues and produced domestic changes. After establishing these premises, I describe five areas of research and advocacy, each of which is located within …