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Full-Text Articles in Law
What Makes For More Or Less Powerful Constitutional Courts?, Stephen Gardbaum
What Makes For More Or Less Powerful Constitutional Courts?, Stephen Gardbaum
Duke Journal of Comparative & International Law
It is sometimes suggested that one or another constitutional or supreme court (for example, the U.S., Indian, or German) is the “most powerful in the world.” And yet it is often far from clear what the measure of power is or should be, what the sources of judicial power are under the given measure, and what explains why some courts are more powerful than others. Is strength mostly a function of formal powers, so that, for example, a court with the authority to invalidate a constitutional amendment on substantive grounds is ipso facto more powerful than one that may only …
Trends In Admissibility Of Hearsay Evidence In War Crime Trials: Is Fairness Really Preserved?, Michaela Halpern
Trends In Admissibility Of Hearsay Evidence In War Crime Trials: Is Fairness Really Preserved?, Michaela Halpern
Duke Journal of Comparative & International Law
In the course of war, who determines what is just and fair? Fairness and justice are and should be universal constants; however, the paths to fairness and justice must be malleable and adapt to different circumstances.
The Nuremberg trials were marked by a conscious effort to avoid “victor’s justice” and provide a fair trial to the defendants who committed acts of atrocity. This paper examines whether this goal was achieved in the Nuremberg, Tokyo, and International Criminal Tribunal for the former Yugoslavia trials, as well as briefly touching upon the Guantanamo military commission trials, by looking particularly at the use …
Interrogation Or Experimentation? Assessing Non-Consensual Human Experimentation During The War On Terror, William J. Aceves
Interrogation Or Experimentation? Assessing Non-Consensual Human Experimentation During The War On Terror, William J. Aceves
Duke Journal of Comparative & International Law
The prohibition against non-consensual human experimentation has long been considered sacrosanct. It traces its legal roots to the Nuremberg trials although the ethical foundations dig much deeper. It prohibits all forms of medical and scientific experimentation on non-consenting individuals. The prohibition against non-consensual human experimentation is now well established in both national and international law.
Despite its status as a fundamental and non-derogable norm, the prohibition against non-consensual human experimentation was called into question during the War on Terror by the CIA’s treatment of “high-value detainees.” Seeking to acquire actionable intelligence, the CIA tested the “theory of learned helplessness” on …
Letter From The Editor
Duke Journal of Comparative & International Law
No abstract provided.
Law, Territory, And Sovereignty: Some Issues Raised By The Corporate Control Of Land, Joshua Barkan
Law, Territory, And Sovereignty: Some Issues Raised By The Corporate Control Of Land, Joshua Barkan
Duke Journal of Comparative & International Law
No abstract provided.
Making Nations Into Legal Persons Between Imperial And International Law: Scenes From A Central European History Of Group Rights, Natasha Wheatley
Making Nations Into Legal Persons Between Imperial And International Law: Scenes From A Central European History Of Group Rights, Natasha Wheatley
Duke Journal of Comparative & International Law
No abstract provided.
Corporate Social Responsibility And Social Media Corporations: Incorporating Human Rights Through Rankings, Self-Regulation And Shareholder Resolutions, Erika George
Duke Journal of Comparative & International Law
This article examines the emergence and evolution of selected ranking and reporting frameworks in the expanding realm of business and human rights advocacy. It explores how indicators in the form of rankings and reports evaluating the conduct of transnational corporate actors can serve as regulatory tools with potential to bridge a global governance gap that often places human rights at risk. Specifically, this article examines the relationship of transnational corporations in the Internet communications technology sector (ICT sector) to human rights and the risks presented to the right to freedom of expression and the right to privacy when ICT sector …
Introduction To The Proceedings Of The Seminar On Corporations And International Law, Rachel Brewster, Philip J. Stern
Introduction To The Proceedings Of The Seminar On Corporations And International Law, Rachel Brewster, Philip J. Stern
Duke Journal of Comparative & International Law
No abstract provided.
The Expansion Of International Franchise In The Late Nineteenth Century, Andrew Fitzmaurice
The Expansion Of International Franchise In The Late Nineteenth Century, Andrew Fitzmaurice
Duke Journal of Comparative & International Law
No abstract provided.
The Legal Logic Of Wars Of Conquest: Truces And Betrayal In The Early Modern World, Lauren Benton
The Legal Logic Of Wars Of Conquest: Truces And Betrayal In The Early Modern World, Lauren Benton
Duke Journal of Comparative & International Law
No abstract provided.
Sovereignty And Diamonds In Southern Africa, 1908-1920, Steven Press
Sovereignty And Diamonds In Southern Africa, 1908-1920, Steven Press
Duke Journal of Comparative & International Law
No abstract provided.
The Internationalization Of Tobacco Tactics, Sergio Puig
The Internationalization Of Tobacco Tactics, Sergio Puig
Duke Journal of Comparative & International Law
Recently, public health advocates struck a blow against tobacco companies by barring them from bringing challenges under some international trade deals. In this Article, I explain why other governments should adopt similar tobacco “carve-outs.” Specifically, I argue that it is mainly the industry’s aggressive litigation tactics—not the hazardous nature of this consumer product—that justifies treating it in an exceptional manner for the purposes of international litigation. To illustrate my point, first, I explain the nature of the carve-out in relation to a topology of legal forms used to exclude policy areas, economic sectors, and particular industries from obligations stipulated in …
Banning Burqas: The Perspective Of Postsecular Comparative Law, Ralf Michaels
Banning Burqas: The Perspective Of Postsecular Comparative Law, Ralf Michaels
Duke Journal of Comparative & International Law
No abstract provided.
Ivf Battles: Legal Categories And Comparative Tales, Daphne Barak-Erez
Ivf Battles: Legal Categories And Comparative Tales, Daphne Barak-Erez
Duke Journal of Comparative & International Law
Coupled with modern reproductive technologies, the ancient desire for parenthood has led to novel legal challenges. This essay discusses landmark cases addressing those challenges. At the outset, it distinguishes between two litigation paradigms in this area—termed “horizontal” and “vertical.” Horizontal controversies involve private parties who have different aspirations regarding a joint parenthood project (e.g., between two partners who began an IVF procedure and later disagree whether to complete the process). In contrast, vertical controversies concern clashes between an individual (or individuals) and the state, such as when the state or one of its authorities does not allow the individual to …
Regulation In The Shadows Of Private Law, Pammela S. Quinn
Regulation In The Shadows Of Private Law, Pammela S. Quinn
Duke Journal of Comparative & International Law
With proponents of deregulation ascendant, both domestically and around the world, private regulation appears to be an attractive solution to a seemingly intractable problem—assuming it is or can be effective. This Article adds an important corrective to standard accounts of private legal regulation and its effectiveness.
Existing scholarship generally looks to the formal contract terms as the key to understanding private regulation and to evaluating its impact. This practice needs to be rethought. The relationship between contracting parties, as well as the regulatory authority that one party exerts over the other, can be quite different than the relationship described by …
The Apple-Ireland Tax Case: Three Stories On Sovereign Power, Theodore F. Disalvo
The Apple-Ireland Tax Case: Three Stories On Sovereign Power, Theodore F. Disalvo
Duke Journal of Comparative & International Law
No abstract provided.
Best Interest Of A Minor Theist: An American And Religiously Informed Response To Canada’S A.C. V. Manitoba, Kevin M. Simmons
Best Interest Of A Minor Theist: An American And Religiously Informed Response To Canada’S A.C. V. Manitoba, Kevin M. Simmons
Duke Journal of Comparative & International Law
No abstract provided.
Global Standard-Setting 2.0: How The Wto Spotlights Iso And Impacts The Transnational Standard-Setting Process, Panagiotis Delimatsis
Global Standard-Setting 2.0: How The Wto Spotlights Iso And Impacts The Transnational Standard-Setting Process, Panagiotis Delimatsis
Duke Journal of Comparative & International Law
Transnational technical standard-setting has grown in prominence in recent years. The World Trade Organization (WTO) requires the use of international standards but adopts a deferential approach towards international standards. However, practice shows that several international standards are promulgated through opaque and exclusionary processes. In line with this observation, in its recent US—Tuna II ruling, the Appellate Body adopted a more critical stance regarding international standards and the processes that lead to their adoption. Against this backdrop, this article focuses on an analysis of the properties and mechanics of international standard-setting processes within the International Organization for Standardization (ISO), discussing procedural …