Law Commons^™

Hydraulic Fracturing And Water Management In The Great Lakes, Nicholas Schroeck, Stephanie Karisny

Law Faculty Research Publications

No abstract provided.

Is U.S. Operational Self-Defense A State Practice Creating New Customary International Law?, Yevgeny S. Vindman

Yevgeny S Vindman

U.S. policy on self-defense is based on recognition that modern conflicts have created new and unconventional threats that had not been anticipated or addressed in the Law of War. Based on U.S. policy and general principles of self-defense, operational self-defense is an evolutionary concept that developed over the course of the recent conflicts to allow senior commanders to leverage the enormous resources available to reduce or eliminate threats that may have previously been imperceptible. Operational self-defense executed in bello, occupies the operational sphere in War, between tactical and strategic. Operational self-defense is not limited by use of force restrictions imposed …

Equality For All: Equal Protection For Queer Individuals In International Community, David C. Bell

David C Bell

This paper will address the need for international protections of the LGBTI community. After looking at some definitions and theories of international law, this paper will address the question of why protections are needed for the LGBTI community. Then the paper will look at previous attempts to create international precedent to protect these groups. Following those topics, this paper will take a look at the Yogyakarta Principles and conclude by speculating on the future to see where protections for these communities may lie.

The Regulation Of U.S. Money Market Funds: Lessons From Europe, Latoya C. Brown

Latoya C. Brown, Esq.

The recent financial crisis challenged long held perceptions of money market funds (“MMFs”) as stable and highly liquid instruments. Regulators in the US and in Europe now seek to impose additional rules on MMFs to avoid another significant failure as happened to the Reserve Fund. In the US, the debate is drawing even more media attention as question of which regulatory body - such as the Securities and Exchange Commission, the Treasury Department, and the Financial Stability Oversight Council – should lead the way has taken interesting twists and turns. This paper examines primary reform options being proposed in the …

Analyzing The Legitimacy Of The Liberation Tigers Of Tamil Eelam’S Rebellion Against The Sri Lankan State, Paul R. Rickert

Paul R Rickert

No abstract provided.

Linking International Investment Agreements And Corporate Social Responsibility: Challenges And Opportunities In The Grounds Of Corporate Governance, Marco A. Velásquez-Ruiz

Marco A. Velásquez-Ruiz

Considering the intention of introducing a dialogue on the possible interconnections between Foreign Investment Law and Corporate Governance, the purpose of this paper is to present some ideas on the International Investment Agreements likelihood to make Corporate Social Responsibility compromises more robust by including specific provisions on the matter. More specifically, it is intended to understand the ways on which Investment Law –and more specifically International Investment Agreements– influences the structure and dynamics of Corporate Governance, so as to assess whether the inclusion of Corporate Social Responsibility on the abovementioned legal instruments might influence the conduct of Multinational Corporations.

Ending Judgment Arbitrage: Jurisdictional Competition And The Enforcement Of Foreign Money Judgments In The United States, Gregory Shill

Gregory Shill

Recent multi-billion-dollar damage awards issued by foreign courts against large American companies have focused attention on the once-obscure, patchwork system of enforcing foreign-country judgments in the United States. That system’s structural problems are even more serious than its critics have charged. However, the leading proposals for reform overlook the positive potential embedded in its design.

In the United States, no treaty or federal law controls the domestication of foreign judgments; the process is instead governed by state law. Although they are often conflated in practice, the procedure consists of two formally and conceptually distinct stages: foreign judgments must first be …

When Bad Guys Are Wearing White Hats, Catherine A. Rogers

Journal Articles

Allegations of ethical misconduct by lawyers have all but completely overshadowed the substantive claims in the Chevron case. While both sides have been accused of flagrant wrongdoing, the charges against plaintiffs’ counsel appear to have captured more headlines and garnered more attention. The primary reason why the focus seems lopsided is that plaintiffs’ counsel were presumed to be the ones wearing white hats in this epic drama. This essay postulates that this seeming irony is not simply an example of personal ethical lapse, but in part tied to larger reasons why ethical violations are an occupational hazard for plaintiffs’ counsel …

Consular Notification For Dual Nationals, 38 S. Ill. U. L.J. 73 (2013), Mark E. Wojcik

UIC Law Open Access Faculty Scholarship

In a case against the United States brought before the International Court of Justice (ICJ), Mexico sought to protect the rights of fifty-four Mexican nationals who had been arrested in the United States for various crimes and put on trial without being informed of their rights under the Vienna Convention on Consular Relations (VCCR). These fifty-four Mexican nationals all faced the death penalty in various states of the United States. Shortly after filing its case in Avena and Other Mexican Nationals, however, Mexico dropped from the case one Mexican national who was also a citizen of the United States. The …

Abandoning Foreign Depositors In A Bank Failure? The Efta Court Judgment In Efta Surveillance Authority V. Iceland, 2 J. Marshall Global Mkt. L.J. 1 (2013), Valia Babis

John Marshall Global Markets Law Journal

Deposit insurance is a key issue in bank regulation. A mismatch exists, especially in the European Economic Area, between the freedom of banks to operate across borders and the fact that deposit insurance operates on a national basis. EFTA Surveillance Authority v. Iceland examines the protection of overseas depositors in the event of a cross-border bank failure. In EFTA Surveillance Authority, the court examined a state’s responsibility to ensure compensation to depositors and possible discrimination against foreign depositors. This Article reviews the paradoxical holding by the court in light of the facts and circumstances of the case. Further, the Article …

The Future Of The Commodity Futures Market: How Customer Segregated Accounts Can Be Better Protected From Insolvent Futures Commission Merchants, 2 J. Marshall Global Mkt. L.J. 13 (2013), Zachary Brumfield

John Marshall Global Markets Law Journal

Two of the largest futures commission merchants (“FMCs”)—MF Global and Peregrine Financial Group—filed for bankruptcy in 2011 and 2012, respectively. The bankruptcies of two of the largest players in the futures commodity market shook up the industry. Many customers became weary and distrustful of FCMs. This Article proposes solutions in order to boost customer confidence in the futures market without deterring the largest futures traders. Further, this Article discusses the pitfalls of the current regulatory model with respect to customer segregated funds and the necessary changes to the current regime by the CFTC and other self-regulatory organizations. After the MF …

Transatlantic Mutual Recognition In The Field Of Global Financial Regulation, 2 J. Marshall Global Mkt. L.J. 43 (2013), Nico Klein

John Marshall Global Markets Law Journal

International cooperation and coordination among countries is a highly sought after goal for many. In that regard, in order to achieve international cooperation and coordination, this Article focuses on the concept of mutual recognition and the key areas of global financial regulatory reform to which the concept could be applied. The benefits of mutual recognition are increased market liberalization, facilitation of private cross-border movement, and increased regulatory standards. To discuss the concept of mutual recognition, this Article examines the European Union/European Economic Area approach provided by the Markets in Financial Instruments Directive (“MiFID”). This Article reviews the EU’s idea of …

The D.C. Circuit Court’S Opinion In Hunter V. Ferc: A Panacea For Resolving A Jurisdictional Dispute Or Mere Panache?, 2 J. Marshall Global Mkt. L.J. 69 (2013), Matthew Kluchenek, Regina Speed-Bost, Laura Chipkin, Rachel Remke

John Marshall Global Markets Law Journal

The Commodity Futures Trading Commission (“CFTC”) and the Federal Energy Regulatory Commission (“FERC”) were in a jurisdictional tug-of-war until March 2013, when the D.C. Circuit Court of Appeals issued a much anticipated decision in Hunter v. FERC. This Article discusses the Hunter case, which offered some clarity as to the jurisdictional boundaries of the CFTC and FERC with regard to certain types of futures contracts. Historically, the CFTC has been authorized by the Commodity Exchange Act (“CEA”) to prevent and regulate fraud and manipulation in the futures market. On the other hand, FERC is an independent agency charged with the …

Apologies In The Marketplace, Kish Vinayagamoorthy

Scholarly Articles

In order to better appreciate the insufficiency of money in repairing relationships, Part I describes the benefits that an apology brings to the injured party, transgressor, and the broader community in which the parties belong. Part II explains the increasing significance of relationships to certain categories of commercial transactions and provides examples of the types of relational damage that a contractual breach can cause to these commercial relationships. Part III explains how the benefits previously described in Part I are applicable to repairing the types of commercial relational harm described in Part II. Given that relationships matter especially in transnational …

Lochner Disembedded: The Anxieties Of Law In A Global Context, Peer Zumbansen

Indiana Journal of Global Legal Studies

This paper explores, in an inevitably cursory manner, some of the main challenges facing a legal theory of transnational governance today. In part building on and responding to William Twining's identification of key problems of law in a global context (2009; 2012), the following paper adopts a two-fold approach. One element is to suggest a conceptual architecture, which captures law in its transformational state through a focus on actors, norms, and processes. Second, the paper proposes case

studies as a central methodological device to explore the nature, scope, and function of governance-both legal and nonlegal-in a global context. Through the …

The Integrated Approach—Regulating Private Human Spaceflight As Space Activity, Aircraft Operation, And High-Risk Adventure Tourism, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

One of the overriding issues concerning private human spaceflight concerns how to properly regulate this specific new type of activity. Noting that in the discussion regarding regulation thereof usually the three distinct regimes of space law, air law and high-risk adventure tourism law are drawn upon to look for solutions, the present paper addresses the key elements of each of these approaches as they are to some extent already currently being applied and where, as a consequence, gaps and overlaps arise, as well as presents an effort to address the latter in a sensible, coherent, efficient and feasible manner.

Kiobel V. Royal Dutch Petroleum: A Practitioner's Viewpoint, Marco Simons

Maryland Journal of International Law

No abstract provided.

Extraterritoriality And The Rule Of Law: Why Friendly Foreign Democracies Oppose Novel, Expansive U.S. Jurisdiction Claims By Non-Resident Aliens Under The Alien Tort Statute, Donald I. Baker

Maryland Journal of International Law

No abstract provided.

Kiobel, Unilateralism, And The Retreat From Extraterritoriality, Austen L. Parrish

Maryland Journal of International Law

No abstract provided.

Governance Of Global Mobile Money Networks: The Role Of Technical Standards In Mobile Money In Developing Countries, Jane K. Winn

Articles

Mobile money has the potential to be an effective policy instrument for financial inclusion in developing countries, but it also has the potential to fuel money laundering and terrorist financing. The 2012 revised Financial Action Task Force standards attempt to strike a workable balance between the goals of financial inclusion and financial integrity in developing countries. Mobile money schemes are mostly based in national markets, however, and are not normally designed to address the need of poor migrants for cheap, effective cross-border remittance services.

Demand for such cross-border remittance services may drive the development of technical standards to build global …

Volume 38, Canada-United States Law Journal

Canada-United States Law Journal

No abstract provided.

The Role Of Foreign Authorities In U.S. Asylum Adjudication, Fatma E. Marouf

Scholarly Works

U.S. asylum law is based on a domestic statute that incorporates an international treaty, the U.N. Protocol Relating to the Status of Refugees. While Supreme Court cases indicate that the rules of treaty interpretation apply to an incorporative statute, courts analyzing the statutory asylum provisions fail to give weight to the interpretations of our sister signatories, which is one of the distinctive and uncontroversial principles of treaty interpretation. This Article highlights this significant omission and urges courts to examine the interpretations of other States Parties to the Protocol in asylum cases. Using as an example the current debate over social …

Dreaming Denationalized Law: Scholarship On Autonomous International Arbitration As Utopian Literature, Ralf Michaels

Faculty Scholarship

A completely denationalised law is of course a utopia. But it is a utopia not just in the broad sense of being unrealistic, at least for the present, and perhaps also for the future. No, it is a utopia in the very literal sense of the word. Recall what utopia means in Greek: no place. Delocalised arbitration, non-state law, is, quite literally, no-place law. It thus makes up a utopia in the central meaning of the term.

International Commercial Arbitration should be just about money. But its scholarship is full of invocations of dreams, visions, faith, utopia. These are not …

Beyond Regulation: A Comparative Look At State-Centric Corporate Social Responsibility And The Law In China, Virginia H. Ho

Vanderbilt Journal of Transnational Law

Corporate social responsibility (CSR) is often understood as the voluntary actions firms take beyond legal compliance. However, in recent years, governments around the world have also begun to actively promote CSR, reflecting broader governance trends that embrace "soft law," quasi-voluntary standards, and other novel incentives to move companies toward and beyond minimum regulatory goals. Comparative legal scholarship has only recently begun to consider the intersections of these mechanisms with positive law, formal institutions, and traditional regulatory enforcement structures. The adoption of these policies in historically weak regulatory environments raises puzzling questions about their motivation, scope, and potential. As a leader …

Pitfalls In Brazilian Bankruptcy Law For International Bond Investors, Jeffrey M. Anapolsky, Jessica F. Woods

Journal of Business & Technology Law

No abstract provided.

Mass Torts And Universal Jurisdiction, Vivian Grosswald Curran

Articles

The technologies of the present era mean that injuries have become more massive in dimension. Mass torts affect greater numbers of people and larger geographical areas. Consequently, they can cross borders, affecting the populations of multiple countries. One of the two mechanisms in tort law for remedying mass catastrophes. restricted to cases involving jus cogens violations (namely, violations of human rights so grave as to be against international customary law, or the "law of nations"), is universal jurisdiction pursuant to the Alien Tort Statute (ATS).

Despite the distinctive official restriction of universal jurisdiction to the criminal law domain in civilian …

Federal Judicial Center International Litigation Guide: Recognition And Enforcement Of Foreign Judgments, Ronald A. Brand

Articles

This publication was prepared for the U.S. Federal Judicial Center as a guide for Federal Judges on the recognition and enforcement of foreign judgments. It covers applicable law in federal courts, the issues raised when a foreign judgments recognition case, grounds for non-recognition (and their sources in the law), and recent developments that may affect future adjustments in the rules. The law in those states that have adopted one of the Uniform Acts is covered, as is the law in states that remain under a common law system for recognition and enforcement of judgments. Also covered is the 2005 Hague …

Solving "The Gravest Natural Resource Shortage You've Never Heard Of": Applying Transnational New Governance To The Phosphate Industry, Chelsae R. Johansen

Vanderbilt Journal of Transnational Law

Experts believe that global reserves of phosphates, an essential and irreplaceable ingredient in fertilizers, will only last another fifty to one hundred years. Although the consequences of a phosphate shortage include a global famine and decreased world population, the phosphate industry today operates with little concern for sustainable mining and use of the resource. Because the current system of international governance is neither raising awareness of the looming phosphate shortage nor incentivizing phosphate-industry members to act sustainably, the future of phosphates and of food security depend on a decentralized system of internal industry governance known as Transnational New Governance. This …

Who Governs? Delegations In Global Trade Lawmaking, Terence C. Halliday, Josh Pacewicz, Susan Block-Lieb

Faculty Scholarship

Who governs international trade law regimes? Although this question has attracted much research for global regulatory regimes, very little is known about international trade law organizations which function as global legislatures. This paper focuses on hitherto invisible attributes of the inner core of global legislators - the state and non-state delegations and delegations that create global norms for private international trade law through the most prominent global trade legislature, the United Nations Commission on International Trade Law (UNCITRAL). Based on ten years of fieldwork, extensive interviews, and unique data on delegation attendance and participation in UNCITRAL’s Working Group on Insolvency, …

Assessing Transnational Private Regulation Of The Otc Derivatives Market: Isda, The Bba, And The Future Of Financial Reform, Gabriel V. Rauterberg, Andrew Verstein

Articles

For the last twenty years, the dominant narrative of the over-the-counter derivatives market has been one of absent regulation, deregulation, and regulatory conflict, predictably resulting in disaster. This Article challenges this narrative, arguing that the global derivatives market has been subject to pervasive and harmonized regulation by what should be recognized as transnational private regulators. Recognizing the reality of widespread transnational private regulation of derivatives has significant implications, which this Article explores. Appreciating the actual regulatory status quo is essential if policymakers are to correctly diagnose problems, avoid past regulatory errors, and plan effective remedies. There are also advantages to …