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Full-Text Articles in Law
Addressing The Incentive For Expropriation Within Business Groups: The Case Of The Korean Chaebol, Christopher Hale
Addressing The Incentive For Expropriation Within Business Groups: The Case Of The Korean Chaebol, Christopher Hale
Fordham International Law Journal
This Article builds upon prior empirical findings on the prevalence of pyramids and focuses on the financing subsidies derived through the internal capital markets of pyramids--particularly through affiliations with financial institutions. Part I of this Article provides a brief overview of the relevant literature and the role that pyramids can play in separating ownership and voting rights. Part II describes the phenomenon by which the financing advantages derived by firms with financial affiliates, often non-bank financial institutions (“NBFIs”), results in a distortion of the market that contributes to pyramid expansion, thereby exacerbating the risk of minority shareholder expropriation. Part III …
Clinical Legal Education And The Reform Of The Higher Legal Education System In China, Mao Ling
Clinical Legal Education And The Reform Of The Higher Legal Education System In China, Mao Ling
Fordham International Law Journal
This Article presents an overview of the higher legal education system in China: its structure, purposes, teaching methods, and problems. The Article suggests ways to reform China's higher legal education system, including clinical legal education, one of the new practical teaching methods that has been used by many law schools in China with promising results.
Applicability Of The Geneva Conventions To "Armed Conflict" In The War On Terror, Miles P. Fischer
Applicability Of The Geneva Conventions To "Armed Conflict" In The War On Terror, Miles P. Fischer
Fordham International Law Journal
This Essay briefly reviews the application of the Geneva Conventions of 1949 (the “Conventions”) in the so-called war on terror since September 11, 2001 (“9/11”), highlighting a few current issues of particular interest; notably, the concept of “armed conflict,” the role of Common Article 3, the impact of the MC Act, screening by “competent tribunals,” and enforcement of the Conventions in courts martial and against Central Intelligence Agency (“CIA”) operatives.
The Proliferation Of The Law Of International Criminal Tribunals Within Terrorism And "Unlawful" Combatancy Trials After Hamdan V. Rumsfeld, Geert-Jan Alexander Knoops
The Proliferation Of The Law Of International Criminal Tribunals Within Terrorism And "Unlawful" Combatancy Trials After Hamdan V. Rumsfeld, Geert-Jan Alexander Knoops
Fordham International Law Journal
This Article examines the arguments that led the Supreme Court to its landmark judgment, in particular: (i) the jurisdiction of federal courts to ascertain procedural challenges to the lawfulness of military commission proceedings; (ii) the relation to the Geneva Convention; (iii) the aspect of conspiracy as a (non-)legal basis for indictments issued before military commissions, especially in the argument raised by the defense in the Hamdan case; and (iv) the case law of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) with respect to the concept of conspiracy and joint criminal enterprise (“JCE”). The case law of the ICTY, …
Legal Pluralism Between Islam And The Nation-State: Romantic Medievalism Or Pragmatic Modernity?, Sherman A. Jackson
Legal Pluralism Between Islam And The Nation-State: Romantic Medievalism Or Pragmatic Modernity?, Sherman A. Jackson
Fordham International Law Journal
This Essay attempts a reconciliation of sorts between two perspectives on legal pluralism, via specific reference to Islamic law, most notably in its pre-modern guise. The Essay begins with a provisional commitment to legal centralism, but primarily as a means of securing a functional place for sub-State reglementary regimes. To this end, legal centralism, as presented, is tempered by a demonstration that, even where the State enjoys an exclusive monopoly on the application of sanctions with impunity, it need not be the actual source of every rule it recognizes or applies as law.
A Force For Globalization: Emerging Markets Debt Trading From 1994 To 1999, Ross P. Buckley
A Force For Globalization: Emerging Markets Debt Trading From 1994 To 1999, Ross P. Buckley
Fordham International Law Journal
This Article analyzes the history from 1994-1999 of the secondary market in emerging markets debt, identifying the lessons learned from that period of market development. It pays particular attention to the increasing integration of the secondary market for emerging markets debt with traditional financial markets, and to the force for globalization that this secondary market therefore exerted in the period.
Addressing The Emergence Of Advocacy In The Chinese Criminal Justice System: A Collaboration Between A U.S. And A Chinese Law School , Robert Lancaster, Ding Xiangshun
Addressing The Emergence Of Advocacy In The Chinese Criminal Justice System: A Collaboration Between A U.S. And A Chinese Law School , Robert Lancaster, Ding Xiangshun
Fordham International Law Journal
This Article addresses how the procedural, educational, and professional changes in China’s legal system have affected criminal trial procedure and criminal trial practice in the country. It discusses how these changes have created a need for Chinese criminal judges, prosecutors, and defense attorneys to be well versed in the adversarial process. It describes how the China Trial Advocacy Institute, a collaborative project between Renmin University of China School of Law and Indiana University School of Law-Indianapolis, has developed to help address this emerging need.
Expanding And Sustaining Clinical Legal Education In Developing Countries: What We Can Learn From South Africa , Peggy Maisel
Expanding And Sustaining Clinical Legal Education In Developing Countries: What We Can Learn From South Africa , Peggy Maisel
Fordham International Law Journal
This Article reviews the development of clinical education in South Africa and the valuable lessons such an analysis provides for those seeking to promote clinical education elsewhere. This Article reviews the obstacles faced in South Africa and the creative ways clinicians have attempted to overcome them, some much more successful than others.
An Internet-Based Mental Disability Law Program: Implications For Social Change In Nations With Developing Economies, Michael L. Perlin
An Internet-Based Mental Disability Law Program: Implications For Social Change In Nations With Developing Economies, Michael L. Perlin
Fordham International Law Journal
This Article first briefly discusses the use of distance learning in a law school environment, and considers the special implications of distance learning for persons with disabilities. It then explains the structure and rationale of these courses, reports on a course section taught in Nicaragua in the Fall-Winter of 2002, and considers plans to replicate the Nicaraguan experience throughout other nations with developing economies in Africa, Asia, Central America, and Central and Eastern Europe. Finally, this Article assesses the potential impact of such a course on developing-economy nations.
U.S. Counterterrorism Policy And Superpower Compliance With International Human Rights Norms, Kenneth Anderson
U.S. Counterterrorism Policy And Superpower Compliance With International Human Rights Norms, Kenneth Anderson
Fordham International Law Journal
Our specific topic is Guantanamo, but in my brief remarks I would like to take the long view of U.S. counterterrorism policy (including Guantanamo) and link it to the question of the compliance of the United States, as today's superpower, with international human rights norms, its relationship to the United Nations and, speaking very broadly, international law norms as conceived by the international community. This is partly a question of the relationship of U.S. counterterrorism policy to international law. But it is also a question of the relationship of the superpower to the rest of the international community, and in …
The Attorney-Client Relationship In Guantanamo Bay, Mark Denbeaux, Christa Boyd-Nafstad
The Attorney-Client Relationship In Guantanamo Bay, Mark Denbeaux, Christa Boyd-Nafstad
Fordham International Law Journal
First, the government restrictions found in the Protective Order and the new regulations severely limit the amount of contact the attorney can have with the client and the type of information that can be shared with the client. Second, the stay of the court proceedings since December 2004 has prevented any opportunity to present issues in the courts. Third, cultural barriers between attorneys and clients, including but not limited to the clients' inability to understand the rule of law and the role of lawyers in the Common Law adversary model in general, and in the U.S. legal system in particular, …
The Prosecution Of War Crimes: Military Commissions And The Procedural And Substantive Protections Beyond International Law, Tim Bakken
Fordham International Law Journal
This Article examines the procedures contained in the Military Commissions Act of 2006 (“MCA”) and finds that they are consistent with the practice of prior military tribunals, domestic and international law, and recent U.S. Supreme Court decisions. The Article discusses specifically two questions that have arisen since the U.S. Supreme Court's decision in Hamdan v. Rumsfeld and Congress's subsequent passage of the MCA. First, do the procedures in the MCA comport with international standards? The Article considers the procedures arising from international agreements and those used in military tribunals during and after World War II, the international tribunals for Rwanda, …
Guantanamo And U.S. Law, Joseph C. Sweeney
Guantanamo And U.S. Law, Joseph C. Sweeney
Fordham International Law Journal
This Article deals with the United States' presence at Guantanamo Bay, Cuba, the domestic and international law issues that have arisen, and the nature of the jurisdiction exercised there by the United States. It does not deal with the operation of the prison facility. Guantanamo Bay is near the eastern end of Cuba, 628 miles (1000 km) from the capital, Havana. It is a deep-water harbor, protected by hills from the extremes of Caribbean weather; but it has an unhealthy tropical climate. The forty-five square miles of the Guantanamo Naval Base have been occupied by the United States since the …
The Reform Path Of The Chinese Judiciary: Progress Or Stand-Still?, Jonas Grimheden
The Reform Path Of The Chinese Judiciary: Progress Or Stand-Still?, Jonas Grimheden
Fordham International Law Journal
In the later part of 2007 China will be at yet another watershed moment. The 17th Party Congress will be held, where new leaders of China will jockey into position. Will these leaders proceed on the slow and cautious trail set out by their predecessors? Will they regress to the demands of the ultra-conservative “left-wingers”? Or will the likely rejuvenated leadership be bold enough to face the many challenges with a more progressive agenda? This Essay addresses these questions by briefly describing and analyzing the development and the potential of the Chinese judiciary. In this analysis, the judiciary functions more …
Precedent And Control In Investment Treaty Arbitration, Tai-Heng Cheng
Precedent And Control In Investment Treaty Arbitration, Tai-Heng Cheng
Fordham International Law Journal
This Article's thesis is that, although arbitrators in investment treaty arbitration are not formally bound by precedent in the same manner as common-law judges, there is an informal, but powerful, system of precedent that constrains arbitrators to account for prior published awards and to stabilize international investment law. This informal system, however, imperfectly supports the relevant policy goals. It is additionally being tested by an increasing diversity of arbitrators, who are themselves facing pressures from investors and host States to meet conflicting demands. This Article proposes that the structure of investment treaty arbitration can absorb such stresses if: (a) the …
The Recognition And Enforcement Of Commercial Arbitral Awards In The People's Republic Of China, Fiona D'Souza
The Recognition And Enforcement Of Commercial Arbitral Awards In The People's Republic Of China, Fiona D'Souza
Fordham International Law Journal
This Perspective explores the reality behind the headlines as well as more recent efforts to improve the situation. By examining legal developments and analyzing the obstacles to enforcement, this Perspective will highlight how the issues are largely symptomatic of a developing legal system--a system struggling to translate theory into practice as it attempts to bridge the gap between traditional Chinese and Western expectations of adjudication. Part I outlines the history and background of arbitration in China, while Part II considers the current state of the law, with a particular focus on recent legislative developments. Part III examines the institutional features …
Reconciling Holocaust Scholarship And Personal Data Protection: Facilitating Access To The International Tracing Service Archive, Collin Mcdonald
Reconciling Holocaust Scholarship And Personal Data Protection: Facilitating Access To The International Tracing Service Archive, Collin Mcdonald
Fordham International Law Journal
This Note examines whether amendment of the ITS charter is necessary to effectuate researcher access, or whether, as a matter of international law, in its capacity as an international organization (“IO”), the ITS can allow access without amendments. Addressing this question implicitly raises two collateral issues that inform the discussion. First, to what degree should an IO Member State's domestic legal framework dictate that State's position in a consensus-based IO decision-making process. Second, when changes in the global political context render an existing IO legal structure ill-suited to an IO's evolving mission, to what degree is it appropriate to re-interpret …
Some Reflections On The Notion Of "State Resources" In European Community State Aid Law, Andrea Biondi
Some Reflections On The Notion Of "State Resources" In European Community State Aid Law, Andrea Biondi
Fordham International Law Journal
In this Article the author givesPart I of this Article goes through a brief overview of the contours of state aid in the European Union. Part II is devoted to a specific aspect of the acquis communitaire. As it is well known, Article 87 [of the European Community Treaty] identifies the five preconditions for a State measure to be defined as aid: Transfer of State resources, advantage, selectivity, distortion of competition, and effect on intra-Community trade. The reflections in this Part is confined to the first of those conditions.
Transparency As An Element Of Good Governance In The Practice Of The Eu And The Wto: Overview And Comparison, Friedl Weiss, Silke Steiner
Transparency As An Element Of Good Governance In The Practice Of The Eu And The Wto: Overview And Comparison, Friedl Weiss, Silke Steiner
Fordham International Law Journal
This article seeks to provide a comparative overview of relevant practice of the European Union ("EU") and the World Trade Organization ("WTO") with regard to the interpretation and use made of "good governance," and in particular with regard to "transparency," one of its core component elements.
Unclos And The Arctic: The Path Of Least Resistance, Mark Jarashow, Michael B. Runnels, Tait Svenson
Unclos And The Arctic: The Path Of Least Resistance, Mark Jarashow, Michael B. Runnels, Tait Svenson
Fordham International Law Journal
This Note discusses the territorial disputes in the Arctic, which are becoming increasingly contentious as a result of the Arctic melt, and the potential resolutions through the mechanisms of international law. Part I discusses the scientific consensus regarding the changing Arctic climate and the resulting conflicts that arise from increased interests in the region. Part II evaluates the varying legal paradigms that may be utilized in order to navigate through the competing claims. Part III argues that, given the uncertainties surrounding both the outcome of any potential International Court of Justice ("ICJ") decision and entering into an Arctic Treaty, universal …
Global Collaboration In Law Schools: Lessons To Learn, Elizabeth B. Cooper
Global Collaboration In Law Schools: Lessons To Learn, Elizabeth B. Cooper
Fordham International Law Journal
This Introduction to the Symposium, Global Alliance for Justice Education (“GAJE”) North American Regional Conference, discusses four articles in the Fordham International Law Journal that advance a growing goal of the GAJE: developing scholarship to facilitate justice education and increasing awareness of the global justice movement. Each of the following four articles identifies ways in which collaborating law professors in significantly different contexts--China, South Africa, Nicaragua, and the United States--can learn from each other to develop vital programs of legal education and to strive for social justice.
Jack Bauer And The Rule Of Law: The Case Of Extraordinary Rendition, James R. Silkenat, Peter M. Norman
Jack Bauer And The Rule Of Law: The Case Of Extraordinary Rendition, James R. Silkenat, Peter M. Norman
Fordham International Law Journal
This Essay examines the Bush Administration's use of a tactic in the “War on Terror” called “extraordinary rendition.” The term extraordinary rendition refers to the process by which alleged terrorists are captured by the U.S. Government, transferred to another country, interrogated, and possibly tortured--all without judicial involvement--so the U.S. Government may attempt to uncover possible terrorist activity. Extraordinary rendition thus differs from ordinary forms of rendition, since the latter refers broadly to any circumstance where a government takes or transfers custody of a person by means of procedures outside those of extradition treaties.
Don't Forget The Family: A Proposal For Expanding Immediate Protection To Families Of Human Trafficking Survivors, Katrina Lynne Baker
Don't Forget The Family: A Proposal For Expanding Immediate Protection To Families Of Human Trafficking Survivors, Katrina Lynne Baker
Fordham International Law Journal
In Part I, this Note will discuss the current epidemic of human trafficking, the various ways the United Nations and the United States have attempted to combat trafficking, and highlight the importance of U.S. prosecutorial duties of witness protection that are especially implicated in human trafficking cases. Part II will present criticisms of efforts by the United Nations and the United States to protect victims of trafficking and their family members. This part will also focus on current U.S. protections afforded to families of human trafficking survivors and programs such as the Witness Security Program, from which U.S. lawmakers may …
A New Tort Code Emerges In China: An Introduction To The Discussion With A Translation Of Chapter 8- Tort Liability, Of The Official Discussion Draft Of The Proposed Revised Civil Code Of The People's Republic Of China, George W. Conk
Fordham International Law Journal
In 1986, the Sixth National People's Congress enacted the General Principles of Civil Law of the People Republic of China ("1986Code). The 1986 Code is now undergoing comprehensive revision. The Standing Committee of the National Peoples Congress (the national legislature) issued a comprehensive draft revised civil code for discussion on December 17, 2002 "Standing Committee Discussion Draft". Discussion in China of the 2002 Standing Committee Discussion Draft has recently centered on the chapter on property rights. Passed on March 16, 2007, after seven drafts, the property rights chapter has been the source, one can readily understand, of much more controversy …
Following The Path Of Oil: The Law Of The Sea Or Realpolitik - What Good Does Law Do In The South China Sea Territorial Conflicts?, Wendy N. Duong
Following The Path Of Oil: The Law Of The Sea Or Realpolitik - What Good Does Law Do In The South China Sea Territorial Conflicts?, Wendy N. Duong
Fordham International Law Journal
This Article describes the relevant features of United Nationas Convention on the Law of the Sea ("UNCLOS"), demonstrates how the Convention is ill-equipped to handle the complexity of the South China Sea disputes, and explores the role of the private sector behind State actors in any negotiated resolution of these disputes. This Article also surveys the development of these disputes from the last decade to the present day, using as a case study the tension between China and Vietnam in the 1990s when UNCLOS went into force. Although the case study occurred in the past decade, the pattern of behaviors …
A Tribute To Judge Bo Vesterdorf, Roger J. Goebel
A Tribute To Judge Bo Vesterdorf, Roger J. Goebel
Fordham International Law Journal
Judge Bo Vesterdorf retires this fall after serving as Judge on the Court of First Instance (“CFI”) since its inauguration on September 25, 1989, acting as its President for three successive terms since 1998. It is accordingly highly appropriate that the editors of the Fordham International Law Journal (“ILJ”) should dedicate this annual issue devoted to European Union (“EU”) law to Judge Vesterdorf as an eminent jurist who has significantly contributed to the development of the CFI's jurisprudence, and also provided able pragmatic leadership as its presiding judge. The ILJ can be considered to act on behalf of the entire …
Targeted Sanctions, Human Rights, And The Court Of First Instance Of The European Community, Elizabeth F. Defeis
Targeted Sanctions, Human Rights, And The Court Of First Instance Of The European Community, Elizabeth F. Defeis
Fordham International Law Journal
In response to the increasing rise of terrorist activities throughout the European Union (“EU”) and the attacks of September 11, the Council of the European Union (“Council”) acted through its powers under the Common Foreign and Security Policy. In addition to other measures, the Council enacted regulations that froze the assets of alleged terrorist individuals and entities. In some cases, the regulations froze assets of alleged terrorists that had been placed on a list published by the U.N. Sanctions Committee, while in another, the assets of individuals were frozen after the European Council itself placed individuals on a list that …
Why The Private Sector Is Likely To Lead The Next Stage In The Global Fight Against Corruption, Ethan S. Burger, Mary S. Holland
Why The Private Sector Is Likely To Lead The Next Stage In The Global Fight Against Corruption, Ethan S. Burger, Mary S. Holland
Fordham International Law Journal
This Article focuses on the role of the private sector in fighting corruption. It argues that it is necessary for the private sector to take a more active role in creating meaningful deterrents to international bribery. Part I of the Article offers background on the concept and extent of corruption in general, and bribery in particular. Part II examines the existing U.S. and international legal framework for combating the payment of bribes abroad. Part III looks at non-State actors who may lead implementation efforts in the future.
Irregular Maritime Migration: Refugee Protection Issues In Rescue And Interception, Barbara Miltner
Irregular Maritime Migration: Refugee Protection Issues In Rescue And Interception, Barbara Miltner
Fordham International Law Journal
This Article undertakes a review of maritime interception and rescue-at-sea practices by evaluating the nature and scope of legal protection that each mechanism affords to refugees encountered at sea. For both interception and rescue, the underlying legal framework and State practice will be discussed, and longstanding protection gaps inherent in each will be examined. Attention is then turned to recent protection improvements in both rescue and interception. These recent changes will be analyzed for their strengths and weaknesses, and some suggestions for improving maritime interception safeguards are offered.
John W. Head, The Future Of The Global Economic Organizations: An Evaluation Of The Criticisms Leveled At The Imf, The Multilateral Development Banks, And The Wto, Stephen Zamora
Fordham International Law Journal
This Article reviews Professor John W. Head’s book, The Future of Global Economic Organizations: An Evaluation of Criticisms Leveled at the IMF, the Multilateral Development Banks, and the WTO. Developing country advocates argue that international economic regimes reinforce unequal allocations of wealth both internally, within national economies, as well as among nations. Economic conservatives argue that the World Bank and other multilateral development banks are superfluous in an age of international capital mobility. Professor John W. Head analyzes these and other criticisms in his timely and insightful study.