Law Commons^™

The Emerging Jurisprudence Of The African Human Rights Court And The Protection Of Human Rights In Africa, John M. Mbaku, Professor Of Economics

Vanderbilt Journal of Transnational Law

During most of the post-independence period, many African countries have either been unwilling or unable to protect human rights or relegated this important function to a small group of poorly funded but brave and courageous non-state actors. Most importantly, some African governments have either actively engaged in human rights violations or failed to bring to justice those who have committed atrocities against their fellow citizens. In the 1970s and 1980s, many African heads of state were more concerned with national sovereignty in an effort to hide the violation of human rights committed within their jurisdictions than participating in the building, …

The Art Of International Law, Hilary Charlesworth

American University Law Review

International lawyers study international law primarily through its written texts—treaties, official documents, judgments, and scholarly works. Critical to being an international lawyer, it seems, is access to the written word, whether in hard copy or online. Indeed, as Jesse Hohmann observes, “the production of text can come to feel like the very purpose of international law.”

Observing The Effects Of Automating The Judicial System With Behavioral Equivalenc, Joseph A. Blass

South Carolina Law Review

No abstract provided.

Nonparty Jurisdiction, Aaron D. Simowitz, Linda J. Silberman

Vanderbilt Journal of Transnational Law

The Supreme Court's recent decisions on personal jurisdiction, including its 2021 decision in Ford Motor Co. v. Montana Eighth Judicial District Court, have all focused on the adjudication of plenary claims. In seven years, the Court has decided six major cases on personal jurisdiction in that context. However, these precedents also appear to guide lower courts in areas outside the traditional focus of personal jurisdiction doctrine but where personal jurisdiction is nonetheless necessary. For example, a court must have personal jurisdiction over a nonparty witness in order to compel the witness to testify or to produce documents. A court must …

European Union Law As Foreign Law, Lior Zemer, Sharon Pardo

Vanderbilt Journal of Transnational Law

The importance and significance of comparative sources to the development of Israeli jurisprudence is expressed in local legislation and rulings. The impact of foreign law on the development of Israeli law has been analyzed and vindicated in numerous studies in the local legal literature. These studies typically focus on the two most prominent legal systems—-common law (the Anglo-American system) and civil law (the Continental system). The historical reasons for this are clear, emanating from the fact that Israel’s legal system is based on these legal regimes and is amended in the spirit of changes made to them. Over the years, …

The Image Of European Union Law In Bilateral Relations, Sharon Pardo, Lior Zemer

Vanderbilt Journal of Transnational Law

The impact of foreign law on the development of national laws has been analyzed and vindicated in numerous studies in comparative legal literature. These studies typically focus on the two most prominent legal systems--common law (the Anglo-American system) and civil law (the Continental system). The historical reasons for this are clear, emanating from the fact that the world's legal systems are based on these legal regimes and are amended in the spirit of changes made to them. Over the years, however, with the many effects of legal and economic globalization, legal systems have become a diverse mosaic which has appropriated …

The Failure To Grapple With Racial Capitalism In European Constitutionalism, Jeffrey Miller

Articles in Law Reviews & Other Academic Journals

Since the 1980s prominent scholars of European legal integration have used the example of U.S. constitutionalism to promote a federal vision for the European Community. These scholars, drawing lessons from developments across the Atlantic, concluded that the U.S. Supreme Court had played a key role in fostering national integration and market liberalization. They foresaw the possibility for the European Court of Justice (ECJ) to be a catalyst for a similar federal and constitutional outcome in Europe. The present contribution argues that the scholars who constructed today’s dominant European constitutional paradigm underemphasized key aspects of the U.S. constitutional experience, including judgments …

A Leap Of Faith: Twail Meets Caribbean Queer Rights Jurisprudence—Intersections With International Human Rights Law, H. Patrick Wells

Dalhousie Law Journal

This article examines the legal status of queer rights in Caribbean jurisprudence. It conducts an analysis of Caribbean queer rights case law, in order to arrive at an understanding of the extent and dynamics of constitutional protection for these rights. It then uses the revelations from this analysis to determine how Caribbean queer rights jurisprudence has intersected with international human rights norms, values and rules. Finally, the article applies the TWAIL methodological approach to international law to argue that the Caribbean queer rights jurisprudence has not so far reflected the counter-hegemonic, resistance, anti-imperialist discourse that TWAIL champions, in spite of …

International Law And Dworkin's Legal Monism, Michael S. Green

Michael S. Green

No abstract provided.

Tort Reform With Chinese Characteristics: Towards A Harmonious Society In The People's Republic Of China, Andrew J. Green

San Diego International Law Journal

This Article presents an analysis of tort law in China specifically focusing on personal injury tort law. It provides a general background on the role of tort law in society, and then it analyzes the specific laws, regulations, and cases that form the personal injury tort regime, covering both historical and recent laws. The article then explores the forces in society and politics that seem to be behind the new legal rules. It concludes by drawing attention to several steps that may be taken as part of further reform.

Balancing Security And Liberty In Germany, Russell A. Miller

Russell A. Miller

Scholarly discourse over America’s national security policy frequently invites comparison with Germany’s policy. Interest in Germany’s national security jurisprudence arises because, like the United States, Germany is a constitutional democracy. Yet, in contrast to the United States, Germany’s historical encounters with violent authoritarian, anti-democratic, and terrorist movements have endowed it with a wealth of constitutional experience in balancing security and liberty. The first of these historical encounters – with National Socialism – provided the legacy against which Germany’s post-World War II constitutional order is fundamentally defined. The second encounter – with leftist domestic radicalism in the 1970s and 1980s – …

The Contribution Of The Special Court For Sierra Leone To The Development Of International Law, Charles Chernor Jalloh

Charles C. Jalloh

This article is the first major study examining whether the Special Court for Sierra Leone (SCSL) has made, or is making, any contribution to the development of international law. The author concludes that it has. In this vein, he analyzes the creation of the Defence Office, the Legacy Phase Working Group and the Outreach Section to show that some of the structural novelties introduced through SCSL practice have proven to be worthy of replication within other international criminal courts. Taking as an example the controversy regarding the United Nations Security Council’s power to create ad hoc international criminal tribunals, the …

Kenya Vs. The Icc Prosecutor, Charles Chernor Jalloh

Charles C. Jalloh

No abstract provided.

Obligations Versus Rights: Substantive Difference Between Wto And International Investment Law, Chios Carmody

Law Publications

WTO law remains relatively uncontentious whereas international investment law elicits much more debate. This article posits that the differences in reception are attributable to deeper substantive differences about what is protected under each regime. In WTO law what is protected is the sum total of all commitments and concessions under the WTO Agreement, something that can be thought of as a “public” good. When a country injures that good, the remedy is for the country to cease the injury, a requirement that naturally places emphasis on obligation. In international investment law, by contrast, what is protected is individualized to a …

Property As Prophesy: Legal Realism And The Indeterminancy Of Ownership, John Humbach

Case Western Reserve Journal of International Law

Property law, like all law, is indeterminate. This means that ownership itself is indeterminate and every owner is vulnerable to challenges based on unexpected legal rules or newly created ones. Even the most seemingly secure rights can be defeated or compromised if a clever-enough lawyer is retained to mount a challenge. The casebooks used in first-year property courses are full of examples. In the case of particularly valuable property, such as works of art, the motivation to fashion arguments to support ownership challenges is obvious. Short and strictly interpreted statutes of limitations can mitigate the risks to ownership by cabining …

Law And Recognition-- Towards A Relational Concept Of Law, Ralf Michaels

Faculty Scholarship

Law is plural. In all but the simplest situations multiple laws overlap—national laws, subnational laws, supranational laws, non-national laws.

Our jurisprudential accounts of law have mostly not taken this in. When we speak of law, we use the singular. The plurality of laws is, at best an afterthought. This is a mistake. Plurality is built into the very reality of law.

This chapter cannot yet provide this concept; it can serve only develop one element. That element is recognition. Recognition is amply discussed in the context of Hart’s rule of recognition, but this overlooks that recognition matters elsewhere, too. My …

Democracy And Torture, Patrick A. Maurer

Patrick A Maurer

September 11th spawned an era of political changes to fundamental rights. The focus of this discussion is to highlight Guantanamo Bay torture incidents. This analysis will explore the usages of torture from a legal standpoint in the United States.

Toward A Political Theory For Private International Law, John Linarelli

Scholarly Works

Private international law presents a dilemma for legal and political philosophy. Legal and political philosophers have ignored private international law, with only a few scattered attempts to evaluate its claims. Private international law offers a powerful set of counterexamples that put into serious doubt attempts to link law’s authority only or primarily to relationships between states and citizens. No society, state, or other practice-mediated relationship can serve as grounds for the authority of private international law to persons to whom it applies but who are outside of such relationships. Private international law affects the normative situations of persons entirely outside …

Toward A New Framework For Understanding Political Opinion, Catherine Dauvergne

Michigan Journal of International Law

This paper was written to frame the work of the Seventh Colloquium on Challenges in International Refugee Law, held at the University of Michigan Faculty of Law, on March 27–29, 2015. To some extent, therefore, it has already served its purpose. It is somewhat tempting in the wake of the Colloquium to completely reconstruct the paper in light of the conversations and conclusions of that event. Such reconstruction, however, would be misleading. Instead, I have chosen to publish the paper in a form that is very similar to its earlier iteration, with a few corrections, clarifications, and explanatory notes about …

Confounding Ockham's Razor: Minilateralism And International Economic Regulation, Eric C. Chaffee

Brooklyn Journal of Corporate, Financial & Commercial Law

In Minilateralism: How Trade Alliances, Soft Law, and Financial Engineering Are Redefining Economic Statecraft, Professor Chris Brummer embraces the complexity of the global economic system and its regulation by exploring the emerging role and dominance of varying strands of economic collaboration and regulation that he collectively refers to as “minilateralism.” In describing the turn toward minilateralism, Brummer notes a number of key features of this new minilateral system, including a shift away from global cooperation to strategic alliances composed of the smallest group necessary to achieve a particular goal, a turn from formal treaties to informal non-binding accords and other …

The Progression And Evolution Of International Law Scholarship Over The Past 50 Years: Some Quantitative Observations, Donald J. Kochan

Donald J. Kochan

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

Democracy And Torture, Patrick A. Maurer

Patrick A Maurer

September 11th spawned an era of political changes to fundamental rights. The focus of this discussion is to highlight Guantanamo Bay torture incidents. This analysis will explore the usages of torture from a legal standpoint in the United States.

The Intelligibility Of Extralegal State Action: A General Lesson For Debates On Public Emergencies And Legality, François Tanguay-Renaud

François Tanguay-Renaud

Some legal theorists deny that states can conceivably act extralegally in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and ultimately contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

Testing Constitutional Pluralism In Strasbourg: Responding To Russia's "Gay Propaganda" Law, Jesse W. Stricklan

Michigan Journal of International Law

In 2013, the Russian Federation amended Federal Law No. 436-FZ, “On Protection of Children from Information Harmful to Their Health and Development” (2013 law), introducing language making illegal the public discussion—or, in the law’s words, “propagandization”—of what it called “non-traditional sexual relationships.” Undertaken during a period of increasing domestic and international hostility, the law was intended by the government to be a bold, two-fold rejection of supposedly “European” values: first, as resistance to the gay rights movement, which is presented as unsuitable for Russia; and second, as a means of further weakening the freedom of expression in Russia. On both …

Dismissing Provenance: The Use Of Procedural Defenses To Bar Claims In Nazi-Looted Art And Securitized Mortgage Litigation, Christian J. Bromley

Christian J Bromley

The litigation surrounding an estimated 650,000 works looted by the Nazis in the Second World War and the millions of securitized mortgages foreclosed in the wake of the Great Recession converge on a fundamental legal principle: who really holds rightful title? Seemingly worlds apart, these separate yet remarkably similar forms of property challenge the American judiciary to allocate property rights between adversaries steadfast in their contention of rightful ownership. The legal fulcrum in this allocation often rests not on the equity or righteousness of either parties’ claim—whether museum versus heir or bank versus former homeowner—but instead on procedural defenses that …

The Power Of The Body: Analyzing The Corporeal Logic Of Law And Social Change In The Arab Spring, Zeina Jallad, Zeina Jallad

Zeina Jallad

The Power of the Body:

Analyzing the Logic of Law and Social Change in the Arab Spring

Abstract:

Under conditions of extreme social and political injustice - when human rights are under the most threat - rational arguments rooted in the language of human rights are often unlikely to spur reform or to ensure government adherence to citizens’ rights. When those entrusted with securing human dignity, rights, and freedoms fail to do so, and when other actors—such as human rights activists, international institutions, and social movements—fail to engage the levers of power to eliminate injustice, then oppressed and even quotidian …

The Eu's Human Rights Obligations Towards Distant Strangers, Aravind Ganesh

Aravind Ganesh

The EU has perfect human rights obligations towards distant strangers. My argument has two limbs: Firstly, in numerous policy areas, the EU asserts jurisdiction via ‘territorial extension’, which combines territorially limited enforcement jurisdiction with a claim of geographically unbounded prescriptive jurisdiction. Doctrinally, this strongly resembles the Lotus principle, and viewed analytically, amounts to a claim not just of power but of political authority. Thus, the EU creates not just factual effects, but legal effects abroad. Secondly, assertions of political authority, even if only de facto, give rise to perfect human rights obligations. I illustrate this by reference to the Strasbourg …

Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra

Thiago Luís Santos Sombra

With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection …

A Comparison Of The Jurisprudence Of The Ecj And The Efta Court On The Free Movement Of Goods In The Eea: Is There An Intolerable Separation Of Article 34 Of The Tfeu And Article Of 11 Of The Eea?, Jarrod Tudor

Jarrod Tudor

Article 11 of the European Economic Area (“EEA”) and Article 34 of the Treaty on the Functioning of the European Union (“TFEU”) prohibit quantitative restrictions on the free movement of goods. The EEA is monitored by the European Free Trade Area Court (“EFTA Court”) and the TFEU is monitored by the European Court of Justice (“ECJ”). In theory, the EFTA Court and the ECJ should interpret Article 11 and Article 34 in the same manner in order to promote harmonization of the law on the free movement of goods and allow for further economic integration between EFTA and the EU. …