Law Commons^™

Cartel Criminalization In Europe: Addressing Deterrence And Institutional Challenges, Francesco Ducci

Vanderbilt Journal of Transnational Law

This Article analyzes cartel criminalization in Europe from a deterrence and institutional perspective. First, it investigates the idea of criminalization by putting it in perspective with the more general question of what types of sanctions a jurisdiction might adopt against collusive behavior. Second, it analyzes the institutional element of criminalization by (1) discussing the compatibility of administrative enforcement with the potential de facto criminal nature of administrative fines under European law and (2) evaluating the trade-offs between an administrative and a criminal model of enforcement. Although a "panoply" of sanctions against both corporations and individuals may be necessary under a …

Predictive Due Process And The International Criminal Court, Samuel C. Birnbaum

Vanderbilt Journal of Transnational Law

The International Criminal Court (ICC) operates under a regime of complementarity: a domestic state prosecution of a defendant charged before the ICC bars the Court from hearing the case unless the state is unable or unwilling to prosecute the accused. For years, scholars have debated the role of due process considerations in complementarity. Can a state that has failed to provide the accused with adequate due process protections nonetheless bar a parallel ICC prosecution? One popular view, first expressed by Professor Kevin Jon Heller, holds that due process considerations do not factor into complementarity and the ICC could be forced …

Due Process Rights And The Targeted Killing Of Suspected Terrorists, Benjamin Mckelvey

Vanderbilt Journal of Transnational Law

The Central Intelligence Agency (CIA), with the approval of the Obama Administration, conducts targeted killings of individual suspected terrorists. These killings have significantly increased since the Iraq war and are now a central component of U.S. counterterrorism strategy. The targeted killing program consists mainly of missile strikes from Predator drones, which are unmanned aerial vehicles operated by the CIA. In May 2010, President Obama's National Security Council approved the targeted killing of Anwar al-Aulaqi, a U.S. citizen and suspected al-Qaeda senior leader believed to be hiding in Yemen. As the first American targeted for extrajudicial lethal force, Aulaqi's situation quickly …

The Scattered Remains Of Sovereign Immunity For Foreign States After Republic Of Argentina V. Weltover,Inc., Sarah K. Schano

Vanderbilt Journal of Transnational Law

The globalization of the United States economy in the latter half of the twentieth century has fostered greater interaction between the United States and foreign states and their instrumentalities. As a result, the likelihood of legal disputes arising between United States entities and foreign states has increased. Traditionally, foreign states have been immune from suit in United States courts. However, the Foreign Sovereign Immunities Act (FSIA), enacted in 1976, specifies instances in which United States courts may deny immunity to foreign states and exercise jurisdiction over them. Under one provision of the FSIA, a foreign state may forfeit its immunity …

Due Process Rights Of Parents And Children In International Child Abductions, Dorothy C. Daigle

Vanderbilt Journal of Transnational Law

Rising divorce rates in recent years have led to increasingly frequent abductions of children by one parent away from the other parent. Often, abducting parents move the children to different jurisdictions in which the parents believe they can obtain a more favorable decision on custody. To remedy this problem, twenty-nine nations joined in 1980 to adopt the Hague Convention on the Civil Aspects of International Child Abduction. This Convention mandates the immediate return, upon request, of the abducted child to the state of habitual residence of the child. The Convention includes several limited exceptions to this mandate, applicable at the …

The 'Mandatory' Nature Of The Hague Service Convention In The United States Is The Forum's Victory, Rita M. Alliss

Vanderbilt Journal of Transnational Law

This Note addresses the current United States approach to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The Note recognizes a split in United States case law concerning whether strict compliance with the Hague Service Convention is required. While some United States courts focus on the scope of the Convention and United States due process concepts to avoid strict compliance, other courts, especially state courts, require strict compliance with the Convention under the supremacy clause of the United States Constitution. The author focuses on service on foreign state corporations by substituted …

Jurisdiction By Necessity: Examining One Proposal For Unbarring The Doors Of Our Courts, Tracy L. Troutman

Vanderbilt Journal of Transnational Law

Although the usually proclaimed goals of the United States legal system are "fair play and justice," a person who is injured in some way, who feels that he has had his rights violated, or who seeks to enforce a business agreement, may not necessarily have a remedy in its judicial system. Often a court may claim it lacks power to hear a case because it does not have jurisdiction over the defendant or the subject matter of the suit. Another motive of a court for refusing to hear the case may be simply the necessity to clear its docket. One …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Neither Private Refugee Assistance Agency Nor its Members have Standing to Contest U.S. Interdiction of Foreign Vessels on High Seas Carrying Undocumented Aliens Haitian Refugee Center v. Gracey, No. 85-5258, slip op. (D.C. Cir. Jan. 9, 1987).

Separation of Citizen Children from Illegal Alien Parents Should be Considered when Determining Extreme Hardship Deportation Proceedings -Cerillo-Perez v. INS, 55 U.S.L.W.2457 (9th Cir. 1987).

California State Court's Exercise of Personal Jurisdiction over Japanese Manufacturer to Indemnify Taiwanese Company is Unreasonable and Unfair in Violation of Due Process. Asahi Metal Industry Co. v. Superior Court of California, 107 S. Ct.1026 (1987).

Nondiscriminatory Ad …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

RELIGIOUS ORGANIZATIONS AND MEMBERS OF CLERGY OF VARIOUS DENOMINATIONS LACK STANDING TO CHALLENGE ADOPTION AND IMPLEMENTATION OF DIPLOMATIC RELATIONS WITH THE VATICAN

--Americans United for Separation of Church and State v. Reagan, 786 F.2d 194 (3d Cir.1986)

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EVEN THOUGH PROCEEDINGS IN THE FOREIGN FORUM MAY TAKE MORE TIME AND MAY YIELD A SMALLER RECOVERY THAN PROCEEDING IN THE UNITED STATES FORUM, THE FOREIGN FORUM MAY BE CONSIDERED AN ADEQUATE FORUM FOR THE PURPOSES OF THE FORRUM NON CONVENIENS DOCTRINE

--De Melo v. Lederle Laboratories, 801 F.2d 1058 (8th Cir. 1986)

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ASSERTION OF PERSONAL JURISDICTION IN CALIFORNIA OVER AN …

State Taxation Of Foreign Source Income Through Worldwide Combined Reporting, Thomas C. Pearson

Vanderbilt Journal of Transnational Law

The primary alternative to worldwide combined reporting is the method used by the United States Government--the arm's length method of taxing foreign source income. Following the explanation of the arm's length method, this Note will outline briefly the due process and commerce clause limitations on a state's jurisdiction to tax and will describe the methods states have chosen to apportion the business income of a unitary business in order to comply with the commerce clause. The impact of worldwide combined reporting depends upon the apportionment formula adopted by the state and the state's definition of the terms "unitary business" and …

Recent Decisions, Robert L. Morgan, Sybil C. Peyer

Vanderbilt Journal of Transnational Law

TREATY ON THE EXECUTION OF PENAL SENTENCES--Federal Court is not Precluded from Using Mexican Conviction as Evidence of Prior Conduct in Enhancing Subsequent Sentence, United States v. Fleishman, 684 F.2d1329 (9th Cir. 1982).

The instant decision examines for the first time two significant issues surrounding the repatriation of United States prisoners from Mexico under TEPS: the legality of prisoner challenges to the collateral effects of a Mexican conviction and the use of a Mexican conviction to enhance a subsequent sentence. By refusing to extend the Rosado holding to preclude "collateral effects" challenges, the instant court wisely recognized the importance of …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

Act of State Doctrine does not Preclude Inquiry by United States Court into Alleged Repudiation by a Foreign Government of its Obligation Arising from a Purely Commercial Transaction

Admiralty Jurisdiction Extends inland to Automobile Accident Caused by the Negligence of Ship's Crew

Outer Continental Shelf Lands Act Incorporates the Long-Shoremen's and Harbor Worker's Compensation Act, and includes Provisions Depriving Claims by Outer Continental Shelf Employees Injured on the Job against Vessel Ownerbased upon Breach of Warranty of Seaworthiness

University's Restrictive Definition of Domicile, which Precludes Nonimmigrant Aliens from Attaining "In-State" Status for Tuition Purposes, Does not Violate Due Process

Order …

The Applicability Of Shaffer To The Quasi-In-Rem Attachment Of Foreigners' Assets, Steven H. Becker

Vanderbilt Journal of Transnational Law

This Note proposes to examine the nature of United States contacts availed of by foreign defendants, and to determine the impact of Shaffer on the potential assertion of quasi-in-rem jurisdiction based on those contacts. It is instructive to consider quasi-in-rem jurisdiction's relation to four possible scenarios involving a foreign defendant: (1) the foreign defendant who owns real estate in this country; or (2) maintains deposits in United States banks; or (3) invests in securities that are registered locally; or (4) extends credit to United States companies or individuals on a regular basis. This Note ultimately concludes that in light of …

The Due Process Mandate And The Constitutionality Of Admiralty Arrests And Attachments Pursuant To Supplemental Rules B And C, Jon L. Goodman

Vanderbilt Journal of Transnational Law

In the past decade, the area of procedural due process, including traditional doctrines of in rem and quasi in rem jurisdiction, has undergone a constitutional facelift. As a result, two of admiralty's most extraordinary features--maritime attachment and garnishment and actions in rem--have been questioned from a constitutional standpoint.

The United States Supreme Court inaugurated the new era with its decision in Sniadach v. Family Finance Corp. In that case, the Court first began changing its procedural due process philosophy by broadening its conception of constitutionally protected forms of property. Having narrowly addressed itself to the question of what constitute constitutionally …

Quiet Revolution: The Development Of Notice Requirements In Admiralty In Rem Actions, Ronald M. Morris

Vanderbilt Journal of Transnational Law

The personification theory has declined in acceptance in the United States since the turn of the century. It is now largely discredited, and has been labeled a mere "literary theme" whose disappearance is "to be welcomed. The personification theory maintains vitality, however, because it provides a rationale for concluding that a ship, and not her owner, may be liable--a result many courts find difficult to justify without the theory.

If the personification theory is taken to its logical extreme, the constitutional due process requirement of notice and opportunity to defend is satisfied by pasting a summons to the vessel's bridge. …

War Crimes Jurisdiction And Due Process: The Bangladesh Experience, Jordan J. Paust, Albert P. Blaustein

Vanderbilt Journal of Transnational Law

Must any state that holds and controls prisoners either prosecute those accused of having committed serious violations of international law or extradite them to a state that will prosecute? Finally, would similar breaches of international law by India or Indian troops obviate any jurisdictional competence or duties of India or Bangladesh?

The questions seemed unusual, at least in view of the past practices of international tribunals of the United States in prosecutions of its nationals. Specific criminal applications of relevant international norms had been relatively sparse.' There were problems with the applicability of international norms to Bangladesh, especially during the …

Egypt's Policy Towards Foreign Investment, Adly Abdel-Meguid

Vanderbilt Journal of Transnational Law

Long before President Nasser took over in 1952, Egypt was considered a very attractive location for foreign investment, particularly from Europe. A large number of Italian, French, and British firms established their own subsidiaries and joint ventures to produce a variety of consumer products to meet domestic demand. Banking, tourism, and petroleum exploration and production were also among the favored sectors. Under the rule of President Nasser, however, foreign investors grew skeptical about Egypt's official policy of welcome. Their doubts were partially confirmed in 1956 when Nasser nationalized the Suez Canal. Their apprehensions were fully realized in 1961, when all …

Political Prisoners: The Law And Politics Of Protection, David P. Forsythe

Vanderbilt Journal of Transnational Law

In the fall of 1975 the United States, in a much publicized step at the United Nations, introduced an abortive resolution calling for world-wide amnesty for political prisoners. Admittedly, this draft resolution was withdrawn because of crippling amendments, and it may well be that this American initiative was launched more to deflect criticism to others than to help political prisoners. But it seems to be the case--at least from a Western perspective--that political prisoners are becoming a more salient subject in world affairs. The concept of political prisoners has existed for quite awhile. In the last decade and a half, …

Jurisdiction--The Short-Lived Death Of The Ker-Frisbie Doctrine, C. Jedson Nau

Vanderbilt Journal of Transnational Law

Why the Second Circuit Court of Appeals chose to retreat from its Toscanino holding is unclear. The drastic nature of the remedy afforded by Toscanino to any defendant illegally abducted has been criticized as too inflexible. On the other hand, the Lujan rule allows the remedy only in the limited circumstances of egregious conduct. The problem remains to determine what remedy, if any, should be available to victims who are subjected to illegal but not outrageous governmental conduct.

The government has vigorously argued that federal narcotics law enforcement depends upon the freedom of officers to abduct suspects, particularly from South …

Admiralty--Punitive Damages Awarded, P. B. S., J. V. K., W. E. H.

Vanderbilt Journal of Transnational Law

Admiralty--Punitive Damages Awarded under the Jones Act

P.B.S.

Subpoena of Documents Located in Foreign Jurisdictions Where Compliance Subjects Witness to Civil or Criminal Sanctions in Foreign State

J.V.K.

Release of American Serviceman to Foreign Court for Trial is not Violative of Due Process Where Substantial United States Constitutional Guarantees are Provided by Foreign Court

W. E. H.