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- Vanderbilt Journal of Transnational Law (50)
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Articles 1 - 30 of 78
Full-Text Articles in Law
Against Settlement In Transnational Business And Human Rights Litigation, Hassan M. Ahmad
Against Settlement In Transnational Business And Human Rights Litigation, Hassan M. Ahmad
All Faculty Publications
In Against Settlement, Owen Fiss argued that settlement may not always be the optimal result of civil suits, particularly those that involve novel or ambiguous areas of law or ostensible power imbalances. That work spurred a range of scholarship around the merits and demerits of settlement. And although the settlement versus litigation debate is now almost four decades old, its currency persists in common law systems in which courts are, at times, called upon to expand or even re-envision doctrines or procedural rules. This article revisits that debate. It applies Against Settlement to transnational business and human rights litigation that …
Retooling Sanctions: China’S Challenge To The Liberal International Order, Timothy Webster
Retooling Sanctions: China’S Challenge To The Liberal International Order, Timothy Webster
Faculty Scholarship
Professor Tom Ginsburg has produced yet another classic of transnational law, political science, and international relations. Democracies and International Law yields important insights into the democratic nature of international law but cautions that authoritarian states can apply these very legal technologies for repressive or anti-democratic purposes. Building on Ginsburg’s theories of mimicry and repurposing, this contribution highlights the role of both techniques in the creation of China’s economic sanctions program. On the one hand, China has developed a basic set of tools to impose economic sanctions—a key instrument in the liberal international toolkit—on foreign entities and persons. In so doing, …
Judicial Activism In Transnational Business And Human Rights Litigation, Hassan M. Ahmad
Judicial Activism In Transnational Business And Human Rights Litigation, Hassan M. Ahmad
All Faculty Publications
This article explores a more expansive adjudicative role for domestic judiciaries in the U.S., U.K., and Canada in private law disputes that concern personal and environmental harm by multinational corporations that operate in the Global South. This expansive role may confront—although not necessarily upend—existing understandings around the separation of powers in common law jurisdictions. I canvass existing literature on judicial activism. Then, I detail legality gaps in the selected common law home states, which can be broken down into four categories: i) failed legislation; ii) deficient legislation; iii) judicial restraint; and iv) judicial deference.
I suggest three ways to actualize …
Even Some International Law Is Local: Implementation Of Treaties Through Subnational Mechanisms, Charlotte Ku, William H. Henning, David P. Stewart, Paul F. Diehl
Even Some International Law Is Local: Implementation Of Treaties Through Subnational Mechanisms, Charlotte Ku, William H. Henning, David P. Stewart, Paul F. Diehl
Faculty Scholarship
Multilateral treaties today rarely touch on subjects where there is no domestic law in the United States, In the U.S. federal system, this domestic law may not be national law, but law of the constituent States of the United States. However, in light of the U.S. Constitution Article VI, treaties in their domestic application unavoidably federalize the subjects they address. The most sensitive issues arise when a treaty focuses on matters primarily or exclusively dealt with in the United States at the State or local level. Although U.S. practice allows for some flexibility to accommodate State/local interests, the federal government …
Personal Jurisdiction: The Transnational Difference, Austen L. Parrish
Personal Jurisdiction: The Transnational Difference, Austen L. Parrish
Articles by Maurer Faculty
This Article engages with some of the key debates that have emerged among international Iaw and civil procedure scholars by examining the flurry of recent transnational cases that have become a common feature on the U.S. Supreme Court's docket. It makes three principal contributions. First, it explains how the recent decisions involving persona jurisdiction should be understood within, and partly limited to, their international contexts. Disputes in involving non-resident foreign defendants raise different considerations than those involving defendants in the United States, and this Article canvasses those differences. If a concern previously was that courts gave too short shrift to …
Debating The Proper Role Of National Law Under The New York Convention, Thomas E. Carbonneau
Debating The Proper Role Of National Law Under The New York Convention, Thomas E. Carbonneau
Thomas Carbonneau
One of the many consequences of the progressive development of globalization apparently has been to incite a vigorous debate among leading members of the international arbitral community about the role of national law in implementing the enforcement regime of the New York Arbitration Convention (Convention). The debate was provoked by federal court rulings in two recent cases: Chromalloy Aeroservices v. Arab Republic of Egypt (Chromalloy) and Alghanim & Sons v. Toys"R" Us (Toys "R" Us). Prior to these opinions, there appeared to have been an implicit consensus in the international community regarding the "anational"character of …
Recognition And Enforcement In Cross-Border Insolvency Law: A Proposal For Judicial Gap-Filling, Professor Sandeep Gopalan, Michael Guihot
Recognition And Enforcement In Cross-Border Insolvency Law: A Proposal For Judicial Gap-Filling, Professor Sandeep Gopalan, Michael Guihot
Vanderbilt Journal of Transnational Law
The globalization of business activity necessarily entails contacts with a diverse array of national laws and legal systems, and insolvencies in this context often have transnational consequences. In such situations, there is a clash of competing national laws on weighty questions including the recognition of security interests, processes related to the disbursal of assets, and different policy preferences underlying the protection of different kinds of creditors. These clashes pose difficulties because each country has framed its insolvency laws in response to particular political exigencies and the policy preferences of its citizens, reflecting different bargains between creditor and debtor protection. Despite …
From Kiobel Back To Structural Reform: The Hidden Legacy Of Holocaust Restitution Litigation, Leora Bilsky, Rodger D. Citron, Natalie R. Davidson
From Kiobel Back To Structural Reform: The Hidden Legacy Of Holocaust Restitution Litigation, Leora Bilsky, Rodger D. Citron, Natalie R. Davidson
Rodger Citron
This paper offers a new approach to the issue of transnational corporate liability for human rights violations and more generally an inquiry into the place of domestic legal experiences in theorizing about transnational law. Grounded in a study of the Holocaust restitution litigation of the 1990s, we explain corporate liability as a type of bureaucratic liability and explore in depth the relationship between the Holocaust litigation and the theory of structural reform litigation developed in the U.S. to address the bureaucratic structure of rights violations. We read the restitution litigation in light of pluralist reformulations of structural reform, in which …
Business And Human Rights: Understanding The Un Guiding Principles From The Perspective Of Transnational Business Governance Interactions, Karin Buhmann
Transnational Business Governance Interactions Working Papers
This article analyses the United Nations (UN) Guidelines on Business and Human Rights adopted in 2011 by the UN Human Rights Council from the perspective of Transnational Business Governance Interactions (TBGI) analytical framework (Eberlein et al. 2014). The article identifies and discusses dimensions of interaction and components of regulatory governance which characterise the Guiding Principles, focusing in particular on the rule formation and implementation. The article notes that the Guiding Principles actively enrolled other actors for the rule-making process ensuring support in a politically and legally volatile field. It identifies mutual 'piggy-backing' by the Guiding Principles and other TBGI Schemes, …
From Kiobel Back To Structural Reform: The Hidden Legacy Of Holocaust Restitution Litigation, Leora Bilsky, Rodger D. Citron, Natalie R. Davidson
From Kiobel Back To Structural Reform: The Hidden Legacy Of Holocaust Restitution Litigation, Leora Bilsky, Rodger D. Citron, Natalie R. Davidson
Scholarly Works
This paper offers a new approach to the issue of transnational corporate liability for human rights violations and more generally an inquiry into the place of domestic legal experiences in theorizing about transnational law. Grounded in a study of the Holocaust restitution litigation of the 1990s, we explain corporate liability as a type of bureaucratic liability and explore in depth the relationship between the Holocaust litigation and the theory of structural reform litigation developed in the U.S. to address the bureaucratic structure of rights violations. We read the restitution litigation in light of pluralist reformulations of structural reform, in which …
Is There Anything To Fear In Transnationalist Development Of Law? The Australian Experience, Paul Von Nessen
Is There Anything To Fear In Transnationalist Development Of Law? The Australian Experience, Paul Von Nessen
Pepperdine Law Review
No abstract provided.
Transnational Conservation Contracts, Natasha Affolder
Transnational Conservation Contracts, Natasha Affolder
All Faculty Publications
Transnational environmental law is the subject of growing scholarly interest. Yet, much work remains to be done to fill in both the conceptual and empirical contours of this field. One methodological challenge that transnational law poses is the need to look beyond traditional sources of international and national law. This article contributes to efforts to understand transnational law's multilayered architecture by drawing attention to the use of transnational contracts as a mechanism to protect habitats and species. The diverse and proliferating examples of conservation contracts discussed in this article – which include forest carbon agreements, conservation concessions, debt-for-nature swaps, conservation …
Oklahoma And Beyond: Understanding The Wave Of State Anti-Transnational Law Initiatives, Johanna Kalb
Oklahoma And Beyond: Understanding The Wave Of State Anti-Transnational Law Initiatives, Johanna Kalb
Articles
No abstract provided.
Comparative Law As Transnational Law: A Decade Of The German Law Journal, Russell Miller, Peer Zumbansen
Comparative Law As Transnational Law: A Decade Of The German Law Journal, Russell Miller, Peer Zumbansen
Russell A. Miller
No abstract provided.
In Defense Of Transnational Domestic Labor Regulation, David J. Doorey
In Defense Of Transnational Domestic Labor Regulation, David J. Doorey
Vanderbilt Journal of Transnational Law
Transnational domestic labor regulation (TDLR) is unilateral regulation introduced by a government to influence labor practices in foreign jurisdictions. TDLR has the potential to empower foreign workers and influence the balance of power in foreign industrial relations systems in ways that might lead to improved labor conditions. Particularly interesting is the potential for TDLR to harness or steer private labor regulation--the many non-state sources of labor practice governance already active in shaping labor conditions within global supply chains. However, whether governments should try to influence foreign labor practices at all is a controversial question. This Article explores the arguments both …
Collective Discursive Democracy And International Law Personality For Transnational Enterprises, Russell Miller
Collective Discursive Democracy And International Law Personality For Transnational Enterprises, Russell Miller
Russell A. Miller
No abstract provided.
Jumping The Pond: Transnational Law And The Future Of Chemical Regulation, Noah M. Sachs
Jumping The Pond: Transnational Law And The Future Of Chemical Regulation, Noah M. Sachs
Vanderbilt Law Review
Just as domestic pollution can cause transnational externalities, domestic environmental regulation can create transnational ripple effects in other jurisdictions. In this Article, I show how chemical regulation-long a weak link in the network of U.S. environmental laws-is about to be reshaped and reformed through the extraterritorial ripple effects of new European Union legislation. Contributing to both international law and environmental law scholarship, this Article shows how transnational information flows can be harnessed to end the longstanding drought of data on chemical toxicity in the United States.
Part I of this Article critiques the U.S. chemical regulatory regime, arguing that a …
Human Rights, Social Justice And State Law: A Manual For Creative Lawyering, Program On Human Rights And The Global Economy, National Economic And Social Rights Initiative (Nesri), Human Rights Institute
Human Rights, Social Justice And State Law: A Manual For Creative Lawyering, Program On Human Rights And The Global Economy, National Economic And Social Rights Initiative (Nesri), Human Rights Institute
Human Rights Institute
This manual is written to help lawyers consider the role of transnational law as an interpretive tool in state constitutional and other state law litigation to protect economic and social rights.9 In Chapter I, the manual provides an overview of the relationship between state law and transnational law. In Chapter II, the manual covers key economic and social rights and provides examples of how courts have found those rights to be justiciable in a range of contexts. The principal economic and social rights discussed in Chapter II are:
- The right to health
- The right to housing
- The right to food …
Sovereignty Migrates In U.S. And Mexican Law: Transnational Influences In Plenary Power And Non-Intervention, Ernesto Hernandez-Lopez
Sovereignty Migrates In U.S. And Mexican Law: Transnational Influences In Plenary Power And Non-Intervention, Ernesto Hernandez-Lopez
Vanderbilt Journal of Transnational Law
Mexico and the United States exercise sovereignty that is increasingly transnational and less absolute with respect to migration. This is evident in changes to Mexico's norm of non-intervention and the United States' plenary power doctrine, two doctrines rooted in international sovereignty. Both have historically defined sovereign authority in absolute terms, avoiding any foreign influence or domestic limitation. The non-intervention norm prohibits Mexican foreign relations from interfering in another state's domestic affairs. Traditionally, it barred a foreign policy on migrants in the United States, which led to Mexico's "no policy" on migrants. The U.S. plenary power doctrine labels immigration law as …
Professor Harold G. Maier At Pepperdine, W H. Bigham
Professor Harold G. Maier At Pepperdine, W H. Bigham
Vanderbilt Journal of Transnational Law
A curious concatenation of events brought Hal Maier and me together, once again, in school year 2000-2001 at Malibu and Pepperdine. We had labored concurrently in the Vanderbilt vineyard for a decade and a half, where we were close friends and colleagues on the Vanderbilt Law School faculty--a time of thrilling growth and maturing in the law school. We went our separate ways at the end of the '70s, but on the invitation of a former Vanderbilt student of both of us, Pepperdine Dean Richard Lynn, whom I had recommended for a faculty position at Pepperdine years earlier, Hal Maier …
Four Decades Later, Robert Covington
Four Decades Later, Robert Covington
Vanderbilt Journal of Transnational Law
Hal Maier and I have taught on the same faculty for four decades. I still like him and enjoy his company, and there are not many people of whom I can say that forty years later. We have agreed and differed with one another on a whole range of issues, from the shape of the first-year curriculum to politics and back again, but have managed to stay friends through it all. Perhaps this is because we could put our differences to one side in the interest of what we insisted was music back when Hal was the drummer and I …
Transboundary Harm In International Law: Lessons From The Trail Smelter Arbitration, Russell Miller, Rebecca Bratspies
Transboundary Harm In International Law: Lessons From The Trail Smelter Arbitration, Russell Miller, Rebecca Bratspies
Russell A. Miller
No abstract provided.
Constitutional Conversations And New Religious Movements: A Comparative Case Study, Leigh H. Greenhaw, Michael H. Koby
Constitutional Conversations And New Religious Movements: A Comparative Case Study, Leigh H. Greenhaw, Michael H. Koby
Vanderbilt Journal of Transnational Law
Using the metaphor of a constitutional conversation to compare the treatment of a relatively new and unpopular religion by the legal systems of the United States, Russia, and Spain, this Article examines the methodology by which laws affecting religion are made and enforced. It uses as a case study the interaction of the Jehovah's Witnesses with the legal system of the United States, comparing it with more recent interactions in Russia and Spain. The Authors argue that while the experience in the United States was profoundly influenced by a common-law methodology, the experience in two civil-law countries, Russia and Spain, …
The Role Of Foreign Languages In Educating Lawyers For Transnational Challenges, Vivian Grosswald Curran
The Role Of Foreign Languages In Educating Lawyers For Transnational Challenges, Vivian Grosswald Curran
Articles
In a world in which every other country seems intent on teaching English to their youth, and in which the United States educational system does not place a high priority on teaching foreign languages, the American law student, dean and professor may doubt if foreign language knowledge is anything more than marginally helpful to law graduates. Similarly, educators at the primary school level may not be likely to assess foreign language education as warranting a greater allocation of scarce public resources.
The usefulness of foreign languages to the United States lawyer gradually has been gaining increased recognition in the profession, …
Annual Of German & European Law 2003, Russell Miller, Peer Zumbansen
Annual Of German & European Law 2003, Russell Miller, Peer Zumbansen
Russell A. Miller
No abstract provided.
Professor Jonathan I. Charney: Commitment Underpinned By Conviction, James R. Mchenry, Iii
Professor Jonathan I. Charney: Commitment Underpinned By Conviction, James R. Mchenry, Iii
Vanderbilt Journal of Transnational Law
When I was asked to speak on behalf of the students regarding Professor Charney's contributions to the Law School, I did initially wonder how closely my relationship with him mirrored the experiences of other students. I worked for him for almost two years as a research assistant for the American Journal of International Law; I spoke with him frequently, either in person or via e-mail, about various international legal issues; and he advised me on both my student note for the Vanderbilt Journal of Transnational Law and on my PhD dissertation. Thus, I knew the image that I had of …
Who Decides The Arbitrators' Jurisdiction? Separability And Competence--Competence In Transnational Perspective, John J. Barcelo, Iii
Who Decides The Arbitrators' Jurisdiction? Separability And Competence--Competence In Transnational Perspective, John J. Barcelo, Iii
Vanderbilt Journal of Transnational Law
Separability and competence-competence are two of the best known concepts in international commercial arbitration. They are different, but often linked, because they share a common goal: to prevent early judicial intervention from obstructing the arbitration process. Both concepts address the question, "Who decides arbitrability--courts or arbitrators?" but in different ways. I will discuss those differences later in this comment.
In his excellent paper delivered at this Symposium, "Everything You Really Need to Know About 'Separability' in Seventeen Simple Propositions, Professor Rau focuses principally on separability. His purpose is to defend separability in U.S. arbitration law from the surprisingly common and …
Politicizing The Crime Against Humanity: The French Example, Vivian Grosswald Curran
Politicizing The Crime Against Humanity: The French Example, Vivian Grosswald Curran
Articles
The advantages of world adherence to universally acceptable standards of law and fundamental rights seemed apparent after the Second World War, as they had after the First. Their appeal seems ever greater and their advocates ever more persuasive today. The history of law provides evidence that caution may be in order, however, and that the human propensity to ignore what transpires under the surface of law threatens to dull and silence the ongoing self-examination and self-criticism required in perpetuity by the law if it is to be correlated with justice.
This Essay presents one side, the dark side, of the …
Small World After All Or Ball Of Confusion? Some Thoughts On National Multijurisdictional Practice, Peter R. Jarvis
Small World After All Or Ball Of Confusion? Some Thoughts On National Multijurisdictional Practice, Peter R. Jarvis
Vanderbilt Journal of Transnational Law
In a prestigious journal devoted to transnational law, the intramural concerns of American lawyers cannot claim pride of place. Nonetheless, it is difficult to see how we can clear the way for lawyers to move from nation to nation if we cannot move from state to state. Charity, as they say, begins at home. Either we are insular and protectionist or we are not. We cannot have it both ways.
As Prince Bismark noted, however, "Politics is the art of the possible." Like it or not, American lawyers are stuck with a system of state-based regulation for the foreseeable future. …
Uni-State Lawyers And Multinational Practice: Dealing With International, Transnational, And Foreign Law, Ronald A. Brand
Uni-State Lawyers And Multinational Practice: Dealing With International, Transnational, And Foreign Law, Ronald A. Brand
Vanderbilt Journal of Transnational Law
This Article addresses how a lawyer may ethically engage in a transnational practice given the current structure of state-by-state bar admission. Part I examines the ethical pitfalls of a transnational practice, including an examination of applicable APA Model Rules of Professional Conduct. This section also addresses different tests for determining whether a lawyer has committed the unauthorized practice of law. Part III makes use of examples to illustrate the legal framework for determining whether a lawyer has committed the unauthorized practice of law. In Part IV, the author concludes by making suggestions for how to better address the ethical dilemma …