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Articles 1 - 14 of 14
Full-Text Articles in Law
Citizens Abroad And Social Cohesion At Home: Refocusing A Cross-Border Tax Policy Debate, Michael Kirsch
Citizens Abroad And Social Cohesion At Home: Refocusing A Cross-Border Tax Policy Debate, Michael Kirsch
Journal Articles
Modern developments raise significant questions about the future importance (or non-importance) of formal citizenship status. For example, while many have interpreted the European Union project, with its emphasis on the free movement of individuals, as portending the decreasing relevance of nationality, recent developments, such as the “Brexit” vote, suggest that national identity remains an important factor for many individuals. While much of the public debate over citizenship focuses on areas, such as immigration, that are more obviously tied to formal citizenship status, this debate also impacts cross-border tax policy.
Over the past decade, several scholars have addressed the use of …
Revisiting The Tax Treatment Of Citizens Abroad: Reconciling Principle And Practice, Michael Kirsch
Revisiting The Tax Treatment Of Citizens Abroad: Reconciling Principle And Practice, Michael Kirsch
Journal Articles
In an increasingly mobile world, the taxation of citizens living abroad has taken on increased importance. Recent international administrative developments — most notably, the weakening of foreign bank secrecy and expansion of global information sharing norms — have further raised the profile of this issue. While U.S. law traditionally has taxed U.S. citizens living abroad in the same general manner as citizens living in the United States, a number of scholars have proposed abandoning the use of citizenship as a jurisdictional basis to tax. In its place, they would apply residence-based principles — i.e., exercising full taxing rights over U.S. …
A Broken Windows Theory Of International Corruption, Roger P. Alford
A Broken Windows Theory Of International Corruption, Roger P. Alford
Journal Articles
The Article re-conceptualizes corruption through the lens of the broken windows theory of community policing, focusing on the root consequences of corruption as well as its secondary effects.
Part II of the Article posits that corruption is a broken window that signals the breakdown of community controls necessary for the maintenance of social order. A government that abuses its power for private gain is a government that cannot be trusted to pursue the general welfare. Empirical evidence finds ample support for this claim, confirming that corruption negatively alters the public’s perception of government and society.
Part III of the Article …
Apportioning Responsibility Among Joint Tortfeasors For International Law Violations, Roger P. Alford
Apportioning Responsibility Among Joint Tortfeasors For International Law Violations, Roger P. Alford
Journal Articles
With the new wave of claims against corporations for human rights violations – particularly in the context of aiding and abetting government abuse – there are unusually difficult problems of joint tortfeasor liability. In many circumstances, one tortfeasor – the corporation – is a deep-pocketed defendant, easily subject to suit, but only marginally involved in the unlawful conduct. Another tortfeasor – the sovereign – is a central player in the unlawful conduct, but, with limited exceptions, is immune from suit under the Foreign Sovereign Immunities Act. A third tortfeasor – the low-level security personnel – accused of actually committing the …
Bioethics And Self-Governance: The Lessons Of The Universal Declaration On Bioethics And Human Rights, O. Carter Snead
Bioethics And Self-Governance: The Lessons Of The Universal Declaration On Bioethics And Human Rights, O. Carter Snead
Journal Articles
The following article analyzes the process of conception, elaboration, and adoption of the Universal Declaration of Bioethics and Human Rights, and reflects on the lessons it might hold for public bioethics on the international level. The author was involved in the process at a variety of levels: he provided advice to the IBC on behalf of the President's Council of Bioethics; he served as the U.S. representative to UNESCO's Intergovernmental Bioethics Committee; and led the U.S. Delegation in the multilateral negotiation of Government experts that culminated in the adoption of the declaration in its final form. The author is currently …
International Human Rights Law And Security Detention, Douglass Cassel
International Human Rights Law And Security Detention, Douglass Cassel
Journal Articles
This article analyzes the grounds, procedures, and conditions required by International Human Rights Law for preventive detention of suspected terrorists as threats to security. Such detention is generally permitted, provided it is based on grounds and procedures previously established by law; is not arbitrary, discriminatory, or disproportionate; is publicly registered and subject to fair and effective judicial review; and the detainee is not mistreated and is compensated for any unlawful detention. In Europe, however, preventive detention for security purposes is generally not permitted. If allowed at all, it is permitted only when a State in time of national emergency formally …
Lower Courts And Constitutional Comparativism, Roger P. Alford
Lower Courts And Constitutional Comparativism, Roger P. Alford
Journal Articles
The issue of constitutional comparativism has been a topic of significant commentary in recent years. However, there is one aspect of this subject that has been almost completely ignored by scholars: the reception, or lack thereof, of constitutional comparativism by state and lower federal courts. While the Supreme Court's enthusiasm for constitutional comparativism has waxed and now waned, lower state and federal courts have remained resolutely agnostic about this new movement. This is of tremendous practical significance because over ninety-nine percent of all cases are resolved by lower state and federal courts. Accordingly, if the lower courts eschew constitutional comparativism, …
Taxing Citizens In A Global Economy, Michael S. Kirsch
Taxing Citizens In A Global Economy, Michael S. Kirsch
Journal Articles
This Article addresses a fundamental issue underlying the U.S. tax system in the international context: the use of citizenship as a jurisdictional basis for imposing income tax. As a general matter, the United States is the only economically developed country that taxes its citizens abroad on their foreign income.
Despite this broad general assertion of taxing jurisdiction, Congress allows citizens abroad to exclude a limited amount of their income earned from working outside the United States. Influential lobbying groups, including businesses that employ significant numbers of U.S. citizens abroad, argue that this exclusion is necessary in order to keep American …
Roper V. Simmons And Our Constitution In International Equipoise, Roger P. Alford
Roper V. Simmons And Our Constitution In International Equipoise, Roger P. Alford
Journal Articles
In Roper v. Simmons, the Court unequivocally affirms the use of comparative constitutionalism to interpret the Eighth Amendment. It does not, however, provide an obvious theoretical basis to justify the practice. This Article searches for a theory to explain the comparativism in Roper using the theories advanced in the author's previous scholarship. It concludes that of the colorable candidates, natural law constitutionalism is the most plausible explanation, with the attendant problems associated therewith. The Article concludes with an analysis of the possible ramifications of the Court's comparative approach, suggesting that it may be pursuing a Constitution that is in international …
Report To Law Revision Commission Regarding Recommendations For Changes To California Arbitration Law, Roger P. Alford
Report To Law Revision Commission Regarding Recommendations For Changes To California Arbitration Law, Roger P. Alford
Journal Articles
In this Article, Professor Alford discusses a report by the Law Revision Commission recommending that certain changes be made to arbitration law in California. It begins by outlining the history of arbitration in California, from its 1961 adoption of the Uniform Arbitration Act, to the 1988 enactment of an international arbitration statute modeled on the UNCITRAL Model Law, to the 1989 enactment of Section 1281.8, which allowed courts to grants provisions remedies to parties involved in arbitration proceedings. It also provides a general overview of the purpose and practice of arbitration law. Then, it provides a chapter-by-chapter analysis the Law …
The American Influence On International Arbitration, Roger P. Alford
The American Influence On International Arbitration, Roger P. Alford
Journal Articles
It is indisputable that the international arbitration world is an identifiable epistemic community that transcends national borders, and whose members are shaped by their own experience. Increasingly, that experience reflects an American influence, be it heritage, training, affiliation, or client base. In these remarks, Professor Alford addresses three issues related to the Americanization of international arbitration. The first is whether international arbitration has, in fact, only recently become Americanized. He posits instead that there is always an ebb and flow to the level of the United States' involvement in international arbitration. During the drafting and signing of the 1958 New …
A Framework Of Norms: International Human-Rights Law And Sovereignty, Douglass Cassel
A Framework Of Norms: International Human-Rights Law And Sovereignty, Douglass Cassel
Journal Articles
The international legal boundary between states; rights and human rights is not fixed. Long ago, the Permanent Court of International Justice - the judicial arm of the League of Nations and the precursor to the present International Court of Justice - recognized that "the question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends on the development of international relations." In recent decades international relations concerning both sovereignty and rights have developed quickly. An examination of those rights and the evolving realities of sovereignty are examined.
Enforcement And The Success Of International Environmental Law, Mary Ellen O'Connell
Enforcement And The Success Of International Environmental Law, Mary Ellen O'Connell
Journal Articles
Professor O'Connell discusses the traditional methods used for international law "enforcement," and she argues that international law is generally obeyed. Its enforcement is based primarily on compliance, not enforcement. Accordingly, the author argues against using international enforcement mechanisms to enforce international environmental law. Instead, she posits that domestic courts should be used for international environmental law enforcement; however, certain obstacles, such as sovereign immunity, the doctrine of standing, and the principle of forum non conveniens, must be overcome. Professor O'Connell argues that it may be possible to overcome many of these court-made obstacles to enforcing international law through domestic courts. …
Using Trade To Enforce International Environmental Law: Implications For United States Law, Mary Ellen O'Connell
Using Trade To Enforce International Environmental Law: Implications For United States Law, Mary Ellen O'Connell
Journal Articles
The United States has enviable domestic environmental protection laws. However, good domestic environmental protection raises two concerns: effectiveness and competitiveness. In response to these two problems of environmental protection—effectiveness and competitiveness—members of Congress introduced over thirty bills in 1990 to amend U.S. trade laws. The bills were designed to either press other states to adopt environmental protection standards similar to the United States own or to at least minimize the competitive disadvantage for U.S. business inherent in U.S. regulations. The bills took one of two approaches: either they aimed at restricting access to U.S. markets for those states failing to …