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Empiricism And International Law: Insights For Investment Treaty Dispute Resolution, Susan Franck

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While scholars in the United States increasingly focus on the empirical dimension of legal scholarship, there have been challenges in using empiricism to explore international legal issues. Rather than relying on logic or instinct alone, empirical methodologies can provide scholars with tools to gain new facts, see existing ideas through a different lens, and engage in a more nuanced analysis of international law phenomena. There appears to be a natural synergy between empiricism and international investment treaty dispute resolution. With calls for trade time outs by U.S. presidential candidates, there is interest in how investment treaties function, whether they achieve …

American Husbandry: Legal Norms Impacting The Production Of (Re)Productivity, Camille Nelson

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This article concentrates on the normative legal structure that established complete control over female slaves by sanctioning their subjugation to further slaveholders’ profit maximization and social domination. The criminal law sanctioned the rape of slave women, and the legal doctrine of partus sequitur ventrem mandated that the legal status of children born to slave women was determined by the mother’s legal status. The slave master derived an economic benefit from ensuring slave women had as many children as possible. This system ensured that slave women held no legally protected autonomy over their own bodies or over their own offspring.

Such …

Training Law Students To Be International Transactional Lawyers - Using An Extended Simulation To Educate Law Students About Business Transactions, Daniel D. Bradlow, Jay Finkelstein

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The article describes an innovative approach to educating law students about the legal issues and the role of lawyers in negotiating international business transactions. It is based on our experiences in developing and teaching a course that is built around a semester-long simulation exercise and taught in counterpart classes at two law schools. The students in these classes represent the opposing parties and negotiate a cross-border business transaction involving a joint venture agreement, a licensing agreement and a long-term supply contract. The students, who attend either the American University Washington College of Law or the Centre for Energy Mineral and …

Deconstructing Hirota: Habeas Corpus, Citizenship, And Article Iii, Stephen I. Vladeck

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The jurisdiction of the federal courts to consider habeas petitions brought by detainees held as part of the “war on terrorism” has been a popular topic for courts and commentators alike. Little attention has been paid, however, to whether the Constitution itself interposes any jurisdictional limits over such petitions. In a series of recent cases, the US government has invoked the Supreme Court’s obscure (and obtuse) 1948 decision in Hirota v. MacArthur (338 US 197) for the proposition that Article III forecloses jurisdiction over any petition brought by a detainee in foreign or international custody, including that of the “Multinational …

Private Finance, Social Responsibility, And Transitional Justice: The Case For South African Reconciliation And Development Bonds, Daniel D. Bradlow

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No abstract provided.

Commodification, Intellectual Property And The Women Of Gee’S Bend, Victoria F. Phillips

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In this article the author explores the story of the quilters of Gee’s Bend, Alabama, tracing the emergence of this group of isolated, disenfranchised craftswomen as both fine artists and the unlikely purveyors of mass-market consumer culture through commodification based on the power of intellectual property rights. The author then looks to recent trends in commodification literature to help explore the tensions and dualities presented in the story. Among other things, the article asks whether the quilters have been coerced into the marketplace and are unwittingly alienating part of their identity, or whether they have willingly tapped the power of …

Review Of The 2006 Trademark Decisions Of The Federal Circuit, Christine Haight Farley, Geri L. Haight

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The United States Court of Appeals for the Federal Circuit delivered only seven precedential trademark opinions in 2006. The Court addressed a range of substantive issues including trade dress configuration, reverse passing off, and genericism. Notably, two of the seven precedential decisions involved plant names protected by the Plant Variety Protection Act. The Court decided only one case in 2006 where the primary issue was procedural, rather than substantive. In that case, the Court sided with the Trademark Trial and Appeal Board and affirmed its decision on the applicability of the res judicata doctrine. In 2006, as in previous years, …

Inter-American System, Diego Rodriguez-Pinzon

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No abstract provided.

The Importance Of The Secret Ballot In Law Faculty Personnel Decisions: Promoting Candor And Collegiality In The Academy, Ira Robbins

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This article began as an exercise in self-education. At a recent faculty meeting, my colleagues were preparing to vote on a slate of candidates. Because discussion had become heated, a tenured faculty member moved for asecret ballot on the appointments committee's recommendation. The main argument in favor of the secret ballot was that, for the protection of untenured professors (who have equal votes with tenured professors on questionsof hiring new faculty), neither their senior colleagues nor the Dean should be permitted to know how they voted. The ensuing discussion on whether to hold a secret ballot was no less heated …

Obligations Of Privilege, Ezra Rosser

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Little attention is paid to the nature of the high incomes of the rich or to the legal or norm-based obligations the rich owe society. This popular and scholarly inattention reflects the general acceptance of the idea that the rich have earned their high incomes and owe society little. By looking at income equations revealing society's role in high incomes and the obligations of the rich, the Article urges a strengthening of the obligations of the rich and rejects the argument that the legal community ought not consider the moral demands associated with high incomes.

Lovin’ The Man: Examining The Nexus Of Irony, Hypocrisy And Curiosity, Camille Nelson

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INTRODUCTION I had just finished reading The Legends Who Lunch: A Weekend of Glory at Promised Land, an article in Oprah Winfrey's magazine.' The article gave an account of a weekend at Oprah's place in California-a weekend in which Oprah honored the black women who paved the way for her success.2 The weekend was devoted to those courageous black women who allowed for the possibility of realizing potential and who simply opened fans to the possibility of allowing ourselves to believe, if only for a second, that we could do anything. This article resonated with me. I sat crying on …

Advances And Missed Opportunities In The International Prosecution Of Gender-Based Crimes, Susana Sacouto

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INTRODUCTION: In the past decade, and particularly since 1998, there has been an incredible transformation in the treatment of sex-based and gender- based violence' in the fields of international humanitarian law and international criminal law. Before this, crimes committed exclusively or disproportionately against women and girls, in times of conflict, were largely either ignored, or at most, treated as secondary to other crimes. Despite the fact that rape and other forms of sexual violence had been widely reported during World War HI, for instance, the crime of rape was not expressly included in either the London Charter, establishing the International …

Aesthetics Of Commercial Law: Domestic And International Implications, Heather Hughes

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No abstract provided.

The Legal Profession's Failure To Discipline Unethical Prosecutors, Angela J. Davis

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This article explores the legal profession's failure to hold prosecutors accountable for misconduct and other ethical violations. Part I introduces the piece, providing several examples of prosecutorial power and abuse in the criminal justice system. Part II discusses prosecutorial misconduct and the inadequacy of current legal remedies. Part III argues that the Model Rules of Professional Responsibility have not provided adequate guidance to prosecutors, and that the disciplinary process has not been effective in disciplining prosecutors when they have abused their power and discretion. Part IV contends that the disbarment of Mike Nifong – the prosecutor in the Duke lacrosse …

Racial Fairness In The Criminal Justice System: The Role Of The Prosecutor, Angela J. Davis

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In this article, Davis analyzes discusses efforts to involve prosecutors in the elimination of racial disparities in the criminal justice system. Part II explains how prosecutors unintentionally contribute to disparities through the arbitrary, unsystematic exercise of discretion. Part III argues that the U.S. Supreme Court has failed to provide an effective legal remedy for victims of race-based selective prosecution. Finally, in Part IV, Davis endorses the use of racial impact studies and task forces and discusses a model reform effort spearheaded by the Vera Institute of Justice.

Foreword: A Symposium Exploring The Modern Legacy Of William Jennings Bryan, Susan Franck

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William Jennings Bryan, known as "The Great Commoner," is one of the most controversial lawyers to hail from Nebraska.' While he may be best-known as a failed three-time Democratic nominee for U.S. President and the legal defender of creationism at the Scopes Monkey Trial, fundamental aspects of Bryan's life have been overlooked.

In a new biography, A Godly Hero: The Life of William Jennings Bryan, Professor Michael Kazin re-evaluates Bryan's legacy and charges us to consider the profound impact Bryan had upon the political, economic and legal reality of the United States. The book has been the subject of controversy. …

Foreign Direct Investment, Investment Treaty Arbitration, And The Rule Of Law, Susan Franck

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In the last decade, there has been a surge in the number of multi-lateral and bilateral investment treaties governments have signed; meanwhile there have been dramatic increases in the amount of foreign direct investment (FDI); and, more recently, the number of claims brought under investment treaties has spiked. This Article examines the relationship amongst these factors and is the first to review the emerging empirical economic literature investigating whether investment treaties achieve their goal of promoting FDI. The Article then specifically evaluates the impact that the procedural right to arbitrate investment claims plays in the process of promoting FDI and …

Langdell Upside-Down: James Coolidge Carter And The Anticlassical Jurisprudence Of Anticodification, Lewis Grossman

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No abstract provided.

Negligence In The Air: The Duty Of Care In Climate Change Litigation, David Hunter, James Salzman

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No abstract provided.

Lou Henkin, Transitional Justice And The Prevention Of Genocide, Juan Mendez

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INTRODUCTION: It's an immense honor and a privilege to have been invited to participate in a tribute to Lou Henkin. Even if that were not the occasion, just the honor of sharing a panel with Judge Barkett and with Dean Koh is enough to overwhelm anybody and it does overwhelm me. I hope you will sympathize with me for having to follow them. It is especially overwhelming because as I look around the room, I see so many people who are much more deserving than I am to be here and to be honored in the way you have honored …

Remarks On Intervention, Juan E. Mendez

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No abstract provided.

El Desarrollo Del Arbitraje Comercial Internacional: Sofisticacion O Complejdad, Horacio A. Grigera Naón

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No abstract provided.

Inter-American System, Diego Rodriguez-Pinzon

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No abstract provided.

Humanitarian Intervention: The New Missing Link In The Fight To Prevent Crimes Against Humanity And Genocide, Paul Williams

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No abstract provided.

Copyright, Fair Use And Motion Pictures, Peter Jaszi

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Within copyright law, the tension between contemporary creators' needs for access to preexisting material, on the one hand, and the imperatives of copyright ownership, on the other, are mediated primarily by the so-called "fair use" doctrine. The application of this venerable legal concept, which exempts some substantial takings of protected content from infringement liability, is the subject of this essay.

Progressive Lawyering In Politically Depressing Times, Susan Carle

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INTRODUCTION: Susan Sturm's important work offers a ray of optimism in a contemporary political climate most people of progressive inclinations find somewhat depressing. Sturm examines new models for bringing about institutional re- form without extensive management from legislatures or courts. As Sturm recognizes, resort to litigation as a strategy for increasing gender parity in employment is not a promising option these days, for several sets of reasons. First, as Sturm has explained in an earlier pathbreaking article, judicial decrees are not well suited to addressing "second generation" problems of structural reform of institutions, such as eliminating manifestations of race and …

Certifying Questions To Congress, Amanda Frost

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As many academics and some judges have openly admitted, no technique of statutory interpretation can settle every question of statutory ambiguity. Sometimes Congress enacts legislation containing gaps or inconsistencies that cannot be resolved through the application of a canon of construction or other interpretive rule. This article proposes an alternative approach for these hard cases. When a federal court is faced with a statute that leaves important issues about its application unclear - particularly issues that implicate the statute's constitutionality - the court could stay the case and refer the question to Congress, much in the same way that courts …