Law Commons^™

Lagrand And Avena Establish A Right, But Is There A Remedy? Brief Comments On The Legal Effect Of Lagrand And Avena In The U.S., Malvina Halberstam

Articles

No abstract provided.

Re-Membering Law In The Internationalizing World, Vivian Grosswald Curran

Articles

This article examines some of the challenges to understanding new, non-national legal configurations as contexts of origin color understandings and evaluations of legal standards allegedly shared across legal communities. It examines a case on assisted suicide, Pretty v. U.K., decided by the European Court of Human Rights. The case illustrates mechanisms of legal integration in the European court, followed by a process of dis-integration that occurred when the decision was reported to the French legal community. The French rendition reflected a legal community's inability to process common law information through civil law cognitive grids. The article addresses both the capacity …

Minority Rights, Minority Wrongs, Elena Baylis

Articles

Many of the new democracies established in the last twenty years are severely ethnically divided, with numerous minority groups, languages, and religions. As part of the process of democratization, there has also been an explosion of “national human rights institutions,” that is, independent government agencies whose purpose is to promote enforcement of human rights. But despite the significance of minority concerns to the stability and success of these new democracies, and despite the relevance of minority rights to the mandates of national human rights institutions, a surprisingly limited number of national human rights institutions have directed programs and resources to …

The Rule Of Law: China's Skepticism And The Rule Of People, Pat K. Chew

Articles

The West believes that without formal legal rules (the rule of law), how society operates is not transparent. This opaqueness in how things get done discourages trade, including foreign investment, which in turn makes overall economic development more difficult. Instead of predictable legal rules, the fear is that the void will be filled with unpredictable and arbitrary human indiscretions. Furthermore, the West believes that the absence of the rule of law makes the basic protection of human and civil rights problematic.

However, the Western view of the rule of law is not the only model. Alternative cultural assumptions about the …

The Lugano Case In The European Court Of Justice: Evolving European Union Competence In Private International Law, Ronald A. Brand

Articles

On October 19, 2004, the European Court of Justice held its first en banc hearing since the 2004 enlargement to twenty-five Member States. The case was Opinion 1/03, involving a request by the Council of the European Union on whether the Community has exclusive or shared competence to conclude the Lugano Convention. While the case on its face deals only with a single convention, it has far broader implications and is likely to influence the development of private international law and private law on a Community level for years to come. This brief article traces the origins of the issues …

The Oas And Constitutionalism: Lessons From Recent West African Experience, Stephen J. Schnably

Articles

No abstract provided.

Creating An Icsid Appellate Body, Johanna Kalb

Articles

Since the creation of the International Centre for Settlement of Investment Disputes (ICSID) over forty years ago, states have increasingly relied on this body to resolve conflicts in bilateral investment treaties (BITs). In light of such exponential growth in the number of disputes brought to the ICSID, the ICSID Secretariat has proposed the adoption of an optional appellate body to promote "coherence and consistency" in ICSID arbitrations. This comment argues that, given the realities of tribunal decision-making and of the interdependent global economy, states should consider taking steps towards reforming the ICSID system as a way of maximizing their remaining …

The Patriot Act And The Wall Between Foreign Intelligence And Law Enforcement, Richard Henry Seamon

Articles

No abstract provided.

Mcgoliath V. David: The European Court Of Human Rights Recent Equality Of Arms Decision, Monique C. Lillard

Articles

No abstract provided.

Punitive Damages Revisited: Taking The Rationale For Non-Recognition Of Foreign Judgments Too Far, Ronald A. Brand

Articles

Punitive damages have been a controversial aspect of U.S. law; often criticized both at home and abroad. Neither U.S. law on punitive damages nor the foreign climate regarding their reception has remained static. This article notes the continuing legislative attack on punitive damages in the United States at both the state and federal level, and focuses on recent developments in case law and treaty negotiations concerning the reception of punitive damages abroad.

Federalism And The Allocation Of Sovereignty Beyond The State In The European Union, Ronald A. Brand

Articles

Any discussion of federalism necessarily runs headlong into concepts of sovereignty, with both terms being subject to Tocqueville's statement that, in discussing federalism, "the human understanding more easily invents new things than new words." Thus, just as systems previously considered to have been "federal" at the dawn of the United States of America were something much different from what was developed for our nation at that time, so is the "federal" system of today's United States different from anything to which we make comparisons.

This article reviews a paper by Professor Peter Tettinger's, and extends his analysis. As Professor Tettinger …

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, …

European Union's New Role In International Private Litigation, Ronald A. Brand

Articles

No abstract provided.

Retaliation, Deborah Brake

Articles

This Article takes a comprehensive look at retaliation and its place in discrimination law. The Article begins by examining current social science literature to understand how retaliation operates as a social practice to silence challenges to discrimination and preserve inequality. Then, using the recent controversy over whether to imply a private right of action for retaliation from a general ban on discrimination as a launching point, the Article theorizes the connections between retaliation and discrimination as legal constructs, and contends that retaliation should be viewed as a species of intentional discrimination. The Article argues that situating retaliation as a practice …

Emote Control: The Substitution Of Symbol For Substance In Foreign Policy And International Law, Jules Lobel, George Loewenstein

Articles

Historical perspectives, as well as recent work in psychology, converge on the conclusion that human behavior is the product of two or more qualitatively different neural processes that operate according to different principles and often clash with one another. We describe a specific 'dual process' perspective that distinguishes between deliberative and emote control of behavior. We use this framework to shed light on a wide range of legal issues involving foreign policy, terrorism, and international law that are difficult to make sense of in terms of the traditional rational choice perspective. We argue that in these areas, the powerful influence …

Buyers' Remedies In General And Buyers' Performance-Oriented Remedies (25th Anniversary Of The United Nations Convention On Contracts For The International Sale Of Goods), Harry Flechtner

Articles

This paper focuses on Articles 45, 46 and 28 of the CISG - provisions that, despite their importance in the substantive scheme of the Convention, have not generated a great deal of case law or controversy. Article 45, the lead provision of Section III ("Remedies for Breach of Contract by the seller") of Part III, Chapter II of the CISG, provides an overview or catalogue of an aggrieved buyer's remedies (Article 45(1)), along with a rule that coordinates buyers' remedies (Article 45(2)) and a rule of general applicability for all of the buyers' remedies (Article 45(3)). Article 46 provides for …

Nominating Manfred Forberich: The Worst Cisg Decision In 25 Years?, Harry Flechtner, Joseph Lookofsky

Articles

The co-authors propose awarding a Razzie' award for the worst decision on the United Nations Convention on Contracts for the International Sale of Goods ("CISG") to the U.S. (federal) district court decision in Raw Materials Inc. v. Manfred Forberich GmbH. We argue the Razzie is deserved because of the decision's bald-faced violation of the interpretational methodology required (as a matter of U.S. treaty obligations) in approaching the CISG - specifically, its use of U.S. domestic law as a guide to interpreting the Convention, in clear violation of the requirement in CISG Article 7(1) that the treaty be interpreted from an …

The European Court Of Human Rights Takes A Step Toward Balancing The Arms, Monique C. Lillard

Articles

No abstract provided.

Is There A Subjective Element In The Refugee Convention's Requirement Of 'Well-Founded Fear'?, James C. Hathaway, William S. Hicks

Articles

Linguistic ambiguity in the refugee definition's requirement of "well-founded fear" of being persecuted has given rise to a wide range of interpretations. There is general agreement that a fear is "well-founded" only if the refugee claimant faces an actual, forward-looking risk of being persecuted in her country of origin (the "objective element"). But it is less clear whether the well-founded "fear" standard also requires a showing that the applicant is not only genuinely at risk, but also stands in trepidation of being persecuted. Beyond vague references to the subjective quality of "fear," few courts or commentators have undertaken the task …

The Right Of States To Repatriate Former Refugees, James C. Hathaway

Articles

Armed conflict often results in the large-scale exodus of refugees into politically and economically fragile neighboring states. The burdens on asylum countries can be extreme, and may only be partly offset by the arrival of international aid and protection resources. Moreover, difficulties inherent in the provision of asylum have been exacerbated in recent years by the increasing disinclination of the wealthier countries that fund the United Nations High Commissioner for Refugees (UNHCR) and most other assistance agencies to meet the real costs of protection. In such circumstances, it is unsurprising that as conflicts wind down, host countries ordinarily seek to …

Agora: Icj Advisory Opinion On Construction Of A Wall In The Occupied Palestinian Territory Editors' Introduction, Lori Fisler Damrosh, Bernard H. Oxman

Articles

No abstract provided.